Deeplinkshttps://www.eff.org/fr/rss/updates.xml/no-downtime-for-free-speech
EFF's Deeplinks Blog: Noteworthy news from around the internetfrStop SESTA: Whose Voices Will SESTA Silence?https://www.eff.org/fr/deeplinks/2017/09/stop-sesta-whose-voices-will-sesta-silence
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><h3>Overreliance on Automated Filters Would Push Victims Off of the Internet</h3>
<p>In all of the debate about the <a href="https://stopsesta.org/">Stop Enabling Sex Traffickers Act</a> (SESTA, <a href="https://www.congress.gov/bill/115th-congress/senate-bill/1693">S. 1693</a>), there’s one question that’s received surprisingly little airplay: under SESTA, what would online platforms do in order to protect themselves from the increased liability for their users’ speech?</p>
<p>With the threat of <a href="https://www.eff.org/deeplinks/2017/08/internet-censorship-bill-would-spell-disaster-speech-and-innovation">overwhelming criminal and civil liability hanging over their heads</a>, Internet platforms would likely turn to automated filtering of users’ speech in a big way. That’s bad news because when platforms rely too heavily on automated filtering, it almost always results in some voices being silenced. And the most marginalized voices in society can be the first to disappear.</p>
<p class="take-action"><a href="https://stopsesta.org/">Take Action</a></p>
<p class="take-explainer"><a href="https://stopsesta.org/">Tell Congress: Stop SESTA.</a></p>
<h3>Section 230 Built Internet Communities</h3>
<p>The modern Internet is a complex system of online intermediaries—web hosting providers, social media platforms, news websites that host comments—all of which we use to speak out and communicate with each other. Those platforms are all enabled by <a href="https://www.eff.org/issues/cda230">Section 230</a>, a law that protects platforms from some types of liability for their users’ speech. Without those protections, most online intermediaries would not exist in their current form; the risk of liability would simply be too high.</p>
<p>Section 230 still allows authorities to <a href="https://www.eff.org/deeplinks/2017/09/stop-sesta-section-230-not-broken">prosecute platforms that break federal criminal law</a>, but it keeps platforms from being punished for their customers’ actions in federal civil court or at the state level. This careful balance gives online platforms the freedom to set and enforce their own community standards while still allowing the government to <a href="https://www.eff.org/deeplinks/2017/09/stop-sesta-amendments-federal-criminal-sex-trafficking-law-sweep-too-broadly">hold platforms accountable for criminal behavior</a>.</p>
<p class="pull-quote">When platforms rely too heavily on automated filtering, it almost always results in some voices being silenced. And the most marginalized voices in society can be the first to disappear.</p>
<p>SESTA would throw off that balance by shifting additional liability to intermediaries. Many online communities would have little choice but to mitigate that risk by investing heavily in policing their members’ speech.</p>
<p>Or perhaps hire computers to police their members’ speech for them.</p>
<h3>The Trouble with Bots</h3>
<p>Massive cloud software company Oracle recently endorsed SESTA, but <a href="https://www.portman.senate.gov/public/index.cfm?p=press-releases&amp;id=197B9C12-C83A-4106-A0C4-DFD0DAB7594B">Oracle’s letter of support</a> actually confirms one of the bill’s biggest problems—SESTA would effectively require Internet businesses to place more trust than ever before in automated filtering technologies to police their users’ activity.</p>
<p>While automated filtering technologies have certainly improved since Section 230 passed in 1996, Oracle implies that bots can now filter out sex traffickers’ activity with near-perfect accuracy without causing any collateral damage.</p>
<p>That’s simply not true. At best, automated filtering provides tools that can aid human moderators in finding content that may need further review. That review still requires human community managers. But many Internet companies (including most startups) would be unable to dedicate enough staff time to fully mitigate the risk of litigation under SESTA.</p>
<p>So what will websites do if they don’t have enough human reviewers to match their growing user bases? It’s likely that they’ll tune their automated filters to err on the side of extreme caution—which means silencing legitimate voices. To see how that would happen, <a href="https://medium.com/@carolinesinders/toxicity-and-tone-are-not-the-same-thing-analyzing-the-new-google-api-on-toxicity-perspectiveapi-14abe4e728b3">look at the recent controversy over Google’s PerspectiveAPI</a>, a tool designed to measure the “toxicity” in online discussions. PerspectiveAPI <a href="https://twitter.com/jessamyn/status/900867154412699649">flags statements like “I am a gay woman” or “I am a black man” as toxic</a> because it fails to differentiate between Internet users talking about themselves and making statements about marginalized groups. It even flagged <a href="https://twitter.com/starchy/status/901236367786508288">“I am a Jew”</a> as more toxic than “I don’t like Jews.”</p>
<p>See the problem? Now imagine a tool designed to filter out speech that advertises sex trafficking to comply with SESTA. From a technical perspective, creating such a tool that doesn’t <i>also</i> flag a victim of trafficking telling her story or trying to find help would be extremely difficult. (For that matter, so would training it to differentiate trafficking from consensual sex work.) If Google, the largest artificial intelligence (AI) company on the planet, can’t develop an algorithm that can reason about whether a simple statement is toxic, how likely is it that <i>any</i> company will be able to automatically and accurately detect sex trafficking advertisements?</p>
<p>Despite all the progress we’ve made in analytics and AI since 1996, machines still have an incredibly difficult time understanding subtlety and context when it comes to human speech. Filtering algorithms can’t yet understand things like the motivation behind a post—a huge factor in detecting the difference between a post that actually advertises sex trafficking and a post that criticizes sex trafficking and provides support to victims.</p>
<p>This is a classic example of the <a href="https://www.techdirt.com/articles/20160519/16090234491/nerd-harder-t-shirt.shtml">“nerd harder” problem</a>, where policymakers believe that technology can advance to fit their specifications <a href="https://www.eff.org/deeplinks/2016/02/content-id-and-rise-machines">as soon as they pass a law requiring it to do so</a>. They fail to recognize the inherent limits of automated filtering: bots are useful in some cases as an aid to human moderators, but they’ll never be appropriate as the unchecked gatekeeper to free expression. If we give them that position, then victims of sex trafficking may be the first people locked out.</p>
<p>At the same time, it’s also extremely unlikely that filtering systems will actually be able to stop determined sex traffickers from posting. That’s because it’s not currently technologically possible to create an automated filtering system that can’t be fooled by a human. For example, say you have a filter that just looks for certain keywords or phrases. Sex traffickers will learn what words or phrases trigger the filter and avoid them by using other words in their place.</p>
<p class="pull-quote">New developments in AI research will likely make filters a more effective aid to human review, but when freedom of expression is at stake, they’ll never supplant human moderators.</p>
<p>Building a more complicated filter—say, by using advanced machine learning or AI techniques—won’t solve the problem either. That’s because all complex machine learning systems are susceptible to what are known as “adversarial inputs”—<a href="https://blog.openai.com/adversarial-example-research/">examples of data that look normal to a human, but which completely fool AI-based classification systems</a>. For example, an AI-based filtering system that recognizes sex trafficking posts might look at such a post and classify it correctly—unless the sex trafficker adds some random-looking-yet-carefully-chosen characters to the post (maybe even a block of carefully constructed incomprehensible text at the end), in which case the filtering system will classify the post as having nothing to do with sex trafficking.</p>
<p>If you’ve ever seen a spam email with a block of nonsense text at the bottom, then you’ve seen this tactic in action. Some spammers add blocks of text from books or articles to the bottom of their spam emails in order to fool spam filters into thinking the emails are legitimate. Research on solving this problem is ongoing, but slow. New developments in AI research will likely make filters a more effective aid to human review, but when freedom of expression is at stake, they’ll never supplant human moderators.</p>
<p>In other words, not only would automated filters be ineffective at removing sex trafficking ads from the Internet, they would also almost certainly end up silencing the very victims lawmakers are trying to help.</p>
<h3>Don’t Put Machines in Charge of Free Speech</h3>
<p>One irony of SESTA supporters’ praise for automated filtering is that <i>Section 230 made algorithmic filtering possible</i>. In 1995, a New York court ruled that because the online service Prodigy engaged in some editing of its members’ posts, <a href="https://www.eff.org/issues/cda230/legislative-history">it could be held liable as a “publisher” for the posts that it <i>didn’t</i> filter</a>. When Reps. Christopher Cox and Ron Wyden <a href="https://www.eff.org/effector/8/13">introduced the Internet Freedom and Family Empowerment Act</a> (the bill that would evolve into Section 230), they did it partially to remove that legal disincentive for online platforms to enforce community standards. Without Section 230, platforms would never have invested in improving filtering technologies.</p>
<p>However, automated filters simply cannot be trusted as the final arbiters of online speech. At best, they’re useful as an aid to human moderators, <a href="https://onlinecensorship.org/news-and-analysis/new-project-creating-better-standards-for-transparency-in-how-platforms-moderate-content">enforcing standards that are transparent to the user community</a>. And the platforms using them must carefully balance enforcing standards with respecting users’ right to express themselves. Laws must protect that balance by shielding platforms from liability for their customers’ actions. Otherwise, marginalized voices can be the first ones pushed off the Internet.</p>
<p class="take-action"><a href="https://stopsesta.org/">Take Action</a></p>
<p class="take-explainer"><a href="https://stopsesta.org/">Tell Congress: Stop SESTA.</a></p>
</div></div></div>Wed, 13 Sep 2017 20:59:28 +0000elliot96922 at https://www.eff.orgCommentaryCreativity & InnovationNo Downtime for Free SpeechFree SpeechSection 230 of the Communications Decency ActAn Attack on Net Neutrality Is an Attack on Free Speechhttps://www.eff.org/fr/node/96308
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Several US senators <a href="https://www.facebook.com/NowThisPolitics/videos/1595571697140981/">spoke out</a> this week on the importance of net neutrality to innovation and free speech. They are right. The Internet has become our public square, our newspaper, our megaphone. The Federal Communications Commission is trying to <a href="https://www.eff.org/deeplinks/2017/05/dear-fcc-we-see-through-your-plan-roll-back-real-net-neutrality">turn it in something more akin to commercial cable TV</a>, and we all have to work together to stop it.</p>
<p>What makes the Internet revolutionary is the ability of every user to create news and culture and participate in conversations with people all across the globe. Mass consumption of entertainment products may be big business and may even help drive adoption, but it’s not new and empowering like the opportunity to <i>participate</i> in speech on an infinite variety of topics. As the Supreme Court recently observed, Internet platforms “can provide perhaps the most powerful mechanism available to a private citizen to make his or her voice heard.” Seven in ten American adults regularly use at least one Internet social networking service. Facebook alone has more than 1.79 billion monthly active users around the world. Twitter has over 310 million monthly active users who publish more than 500 million tweets each <i>day</i>. Instagram has over 600 million monthly users who upload over 95 million photos every day. Snapchat has over 100 million daily users who send and watch over 10 billion videos per day. And that’s just a small sampling of the commercial Internet platforms many of us use everyday. Millions more log into sites like Wikipedia, the Internet Archive, news outlets, government services and local libraries to access a wealth of information and culture.</p>
<p class="pull-quote">FCC Chairman Ajit Pai is threatening to eliminate net neutrality protections altogether by dismantling the legal structure on which they depend</p>
<p>Most importantly, the Internet has played an increasingly vital role in political expression and organizing. Conservative activists from around the country coalesced over various social networking platforms to form the Tea Party movement. The Black Lives Matter movement used Twitter to help spark a national conversation on racial inequality. The Standing Rock Sioux used Twitter, Facebook, Instagram, and YouTube to galvanize national support for their protests against the Dakota Access Pipeline and its threat to their drinking water. Earlier this year organizers used Facebook and Twitter to share information, plan events, and motivate participation in the Women’s March.</p>
<p>What does this have to do with net neutrality? Simple: all of these services depend the existence of open communications protocols that let us innovate without having to ask permission from any company or government.</p>
<p>The Internet was built on the simple but powerful idea that while you may need to pay a service provider for Internet access, that provider doesn’t get to shape <i>what</i> you access – or who has access to <i>you</i>. Anyone who wants to offer a new Internet service can, without paying extra fees to any provider. Users, in turn, can make their own choices about which services they want to use – including the next Twitter/Facebook/Snapchat that’s being created in someone’s basement right now.</p>
<p>In 2014, that powerful idea motivated millions of Internet users to band together and demand that the FCC enact clear, legally sound rules to prevent broadband providers from taking advantage of their power as gatekeepers to engage in unfair practices like paid prioritization, blocking, and other forms of data discrimination. We know that such practices could transform this extraordinary engine for civic discourse into something more like cable TV, where providers and content owners bargain over what content will be available at full speed and what will be throttled.</p>
<p>In 2015, the FCC answered our call and <a href="https://www.eff.org/deeplinks/2015/02/fcc-votes-net-neutrality-big-win">adopted the Open Internet Order</a> to protect net neutrality. In 2016, the DC Circuit Court of Appeal upheld it – in contrast to the efforts of prior FCCs that operated on shaky legal theories. But the new FCC Chairman, Ajit Pai, wants to reverse course. He’s calling on the public to comment on whether we even need open Internet rules in the first place, and threatening to eliminate net neutrality protections altogether by dismantling the legal structure on which they depend, despite widespread public support for those protections and despite the fact that net neutrality has been the rule of the Internet from its inception, backed by a combination of legal requirements and cultural norms that are now in danger of being eliminated.</p>
<p>We can’t let that happen. We still have an open Internet that lets us make ourselves heard, so Let’s Make. Ourselves. Heard. The millions of Internet users who fought for Net Neutrality in 2014, and the millions more who have been mobilized in the intervening years, need to <a href="dearfcc.org">send a simple message to Chairman Pai</a> and his backers in Congress and the Trump Administration: Don't let big cable mess with our Internet.</p>
<p class="take-action"><a href="https://dearfcc.org">take action</a></p>
<p class="take-explainer"><a href="https://dearfcc.org">SPEAK UP FOR NET NEUTRALITY</a></p>
</div></div></div>Thu, 22 Jun 2017 23:38:27 +0000corynne96308 at https://www.eff.orgCommentaryNet NeutralityNo Downtime for Free SpeechCreativity & InnovationEFF Lawsuit Takes on DMCA Section 1201: Research and Technology Restrictions Violate the First Amendmenthttps://www.eff.org/fr/press/releases/eff-lawsuit-takes-dmca-section-1201-research-and-technology-restrictions-violate
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Future of Technology and How It’s Used Is At Stake</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal">Washington D.C.—The Electronic Frontier Foundation (EFF) sued the U.S. government today on behalf of technology creators and researchers to overturn onerous provisions of copyright law that violate the First Amendment.</p>
<p class="MsoNormal">EFF’s <a target="_blank" href="https://www.eff.org/document/1201-complaint">lawsuit</a>, filed with co-counsel Brian Willen, Stephen Gikow, and Lauren Gallo White of Wilson Sonsini Goodrich &amp; Rosati, challenges the <a target="_blank" href="https://www.eff.org/issues/drm">anti-circumvention</a> and anti-trafficking provisions of the 18-year-old <a target="_blank" href="https://www.eff.org/issues/dmca">Digital Millennium Copyright Act</a> (<a href="https://www.eff.org/issues/dmca-rulemaking">DMCA</a>). These provisions—contained in Section 1201 of the DMCA—make it unlawful for people to get around the software that restricts access to lawfully-purchased copyrighted material, such as films, songs, and the computer code that controls vehicles, devices, and appliances. This ban applies even where people want to make noninfringing fair uses of the materials they are accessing.<span> </span></p>
<p class="MsoNormal">Ostensibly enacted to fight music and movie piracy, Section 1201 has long served to <a target="_blank" href="https://www.eff.org/files/2014/09/16/unintendedconsequences2014.pdf">restrict people’s ability</a> to access, use, and even speak out about copyrighted materials—including the software that is increasingly embedded in <a target="_blank" href="https://www.eff.org/deeplinks/2015/01/who-will-own-internet-things-hint-not-users">everyday things</a>. The law imposes a legal cloud over <a target="_blank" href="https://www.eff.org/deeplinks/2016/01/why-owning-your-stuff-means-owning-your-digital-freedom">our rights to tinker</a> with or repair the devices we own, to convert <a target="_blank" href="https://www.eff.org/deeplinks/2015/11/new-dmca-ss1201-exemption-video-games-closer-look">videos</a> so that they can play on multiple platforms, remix a video, or conduct independent security research that would reveal dangerous security flaws in our computers, <a target="_blank" href="https://www.eff.org/deeplinks/2015/07/jeep-hack-shows-why-dmca-must-get-out-way-vehicle-security-research">cars</a>, and <a target="_blank" href="//www.eff.org/deeplinks/2016/04/pacemakers-and-piracy-why-dmca-has-no-business-medical-implants">medical devices</a>. It criminalizes the creation of tools to let people access and use those materials.</p>
<p class="MsoNormal">Copyright law is supposed to exist in harmony with the First Amendment. But the prospect of costly legal battles or criminal prosecution stymies creators, academics, inventors, and researchers. In the complaint filed today in U.S. District Court in Washington D.C., EFF argues that this violates their First Amendment right to freedom of expression.</p>
<p class="MsoNormal">“The creative process requires building on what has come before, and the First Amendment preserves our right to transform creative works to express a new message, and to research and talk about the computer code that controls so much of our world,” said EFF Staff Attorney Kit Walsh. “Section 1201 threatens ordinary people with financial ruin or even a prison sentence for exercising those freedoms, and that cannot stand.”</p>
<p class="MsoNormal">EFF is representing plaintiff Andrew “<a target="_blank" href="http://www.bunniestudios.com/blog/">bunnie</a>” Huang, a prominent computer scientist and inventor, and his company Alphamax LLC, where he is developing devices for editing digital video streams. Those products would enable people to make innovative uses of their paid video content, such as captioning a presidential debate with a running Twitter comment field or enabling remixes of high-definition video. But using or offering this technology could run afoul of Section 1201.</p>
<p class="MsoNormal">“Section 1201 prevents the act of creation from being spontaneous,’’ said Huang. “Nascent 1201-free ecosystems outside the U.S. are leading indicators of how far behind the next generations of Americans will be if we don’t end this DMCA censorship. I was born into a 1201-free world, and our future generations deserve that same freedom of thought and expression.”</p>
<p><span>EFF is also representing plaintiff <a target="_blank" href="https://www.cs.jhu.edu/faculty/matthew-d-green/">Matthew Green</a>, a computer security researcher at Johns Hopkins University who wants to make sure that we all can trust the devices that we count on to communicate, underpin our financial transactions, and secure our most private medical information. Despite this work being vital for all Americans' safety, Green had to seek an exemption from the Library of Congress last year for his security research. </span></p>
<p class="MsoNormal">“The government cannot broadly ban protected speech and then grant a government official excessive discretion to pick what speech will be permitted, particularly when the rulemaking process is so onerous,” said Walsh. “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simply consuming culture, Section 1201 has to go.”</p>
<p class="MsoNormal">For the complaint:<br /><a target="_blank" href="https://www.eff.org/document/1201-complaint">https://www.eff.org/document/1201-complaint</a></p>
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<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Kit</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Walsh</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Staff Attorney</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:kit@eff.org">kit@eff.org</a></div></div></div> </div>
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<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Adam</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Schwartz</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Senior Staff Attorney</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:adam@eff.org">adam@eff.org</a></div></div></div> </div>
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<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Corynne</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">McSherry</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Legal Director</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:corynne@eff.org">corynne@eff.org</a></div></div></div> </div>
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</div></div></div>Thu, 21 Jul 2016 12:58:49 +0000karen92413 at https://www.eff.orgDear Sony Music: It’s Not “Fee Use,” But “Fair Use”https://www.eff.org/fr/deeplinks/2016/05/dear-sony-not-fee-use-fair-use
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p><span>We're pleased to report that Sony Music backtracked on its accusation of copyright infringement against the Hudson Valley Bluegrass Association, and HVBA</span><span>'</span><span>s educational video remains freely available to the public. But the music label’s response leads us to think that Sony</span><span>'</span><span>s misuse of copyright and of YouTube’s automated enforcement system will continue.</span></p>
<p>We <a href="https://www.eff.org/deeplinks/2016/05/youtubes-copyright-robots-help-sony-shake-down-bluegrass-educators">wrote</a> last week about how YouTube’s system, Content ID, incorrectly flagged HVBA’s own <a href="https://www.youtube.com/watch?v=TvRZjTChMGc">video</a> as infringing. The video, an hour-long lecture on the history of bluegrass music, triggered the Content ID filters because it contained three clips of bluegrass recordings copyrighted by Sony, each around 30 seconds <span><span></span>and surrounded by a discussion of the music and its historical relevance</span>. That’s an obvious fair use under copyright law, one that any human reviewer with minimal training would recognize.</p>
<p>A fair use doesn’t require permission from the copyright holder, or a fee. It’s the sort of use that’s free to all. But when HVBA’s webmaster wrote to Sony Music and asked them to withdraw the Content ID match, the company responded by asking for a $500 “administrative fee” and detailed information about HVBA’s use of the song clips. Fortunately, HVBA’s webmaster knew her rights, and after some prodding—and a <a href="https://www.eff.org/deeplinks/2016/05/youtubes-copyright-robots-help-sony-shake-down-bluegrass-educators">post</a> by EFF—Sony Music agreed to withdraw its claim.</p>
<p><span>We're glad Sony stopped </span> trying to block or monetize HVBA’s video. But the company’s response is troubling all the same. A Sony executive emailed HVBA to say that the company “has decided to withdraw its objection to the use of its two sound recordings” and “will waive Sony Music’s administrat[ive] fee.” That sounds like Sony was simply acting out of courtesy, when in fact the company had no right to demand a fee, by any name, for an obvious fair use. Other YouTube users with less knowledge of the law may have been convinced to pay Sony $500 or more, and provide detailed information, for uses of the music that the law makes free to all.</p>
<p>As Congress and the Copyright Office review the law and examine the effectiveness of automated systems like Content ID, they should keep in mind that automated flagging or filtering combined with misleading statements about a company’s legal rights can lead to abuse. That's another reason why YouTube-style automatic filtering should never be mandated by law, and why we need real penalties for false takedowns.</p>
</div></div></div>Tue, 17 May 2016 05:28:45 +0000mitch91691 at https://www.eff.orgAnnouncementCommentaryFixing Copyright? The 2013-2016 Copyright Review ProcessNo Downtime for Free SpeechEFF to Copyright Office: Improper Content Takedowns Hurt Online Free Expressionhttps://www.eff.org/fr/press/releases/eff-copyright-office-improper-content-takedowns-hurt-online-free-expression
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Safe Harbors Work for Rightsholders and Service Providers</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal">Washington, D.C. - Content takedowns based on unfounded copyright claims are hurting online free expression, the Electronic Frontier Foundation (EFF) told the U.S. Copyright Office Friday, arguing that any reform of the Digital Millennium Copyright Act (DMCA) should focus on protecting Internet speech and creativity.</p>
<p class="MsoNormal">EFF’s written <a target="_blank" href="https://www.eff.org/document/eff-512-study-comments">comments</a> were filed as part of a series of <a target="_blank" href="https://www.eff.org/cases/copyright-office-section-512-study">studies</a> on the effectiveness of the DMCA, begun by the Copyright Office this year. This round of public comments focuses on <a target="_blank" href="https://www.law.cornell.edu/uscode/text/17/512">Section 512</a>, which provides a notice-and-takedown process for addressing online copyright infringement, as well as “safe harbors” for Internet services that comply.</p>
<p class="MsoNormal">“One of the central questions of the study is whether the safe harbors are working as intended, and the answer is largely yes," said EFF Legal Director Corynne McSherry. “The safe harbors were supposed to give rightsholders streamlined tools to police infringement, and give service providers clear rules so they could avoid liability for the potentially infringing acts of their users. Without those safe harbors, the Internet as we know it simply wouldn’t exist, and our ability to create, innovate, and share ideas would suffer.”</p>
<p class="MsoNormal">As EFF also notes in its comments, however, the notice-and-takedown process is often abused. A recent <a target="_blank" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2755628">report</a> found that the notice-and-takedown system is riddled with errors, misuse, and overreach, leaving much legal and legitimate content offline. EFF’s comments describe numerous examples of bad takedowns, including many that seemed based on automated content filters employed by the major online content sharing services. In Friday’s comments, EFF outlined parameters endorsed by many public interest groups to rein in filtering technologies and protect users from unfounded blocks and takedowns.</p>
<p class="MsoNormal">“A significant swath of lawful speech is getting blocked from the Internet, just because it makes use of a copyrighted work,” said EFF Staff Attorney Kit Walsh.<span> </span>“The Internet needs fewer bad copyright claims—not more burdensome copyright laws—to protect speech.”</p>
<p class="MsoNormal">For EFF’s full comments to the copyright office:<br /><a target="_blank" href="https://www.eff.org/document/eff-512-study-comments">https://www.eff.org/document/eff-512-study-comments</a></p>
</div></div></div><div class="field field--name-field-contact field--type-node-reference field--label-above"><div class="field__label">Contact:&nbsp;</div><div class="field__items"><div class="field__item even"><div class="ds-1col node node--profile node--promoted view-mode-node_embed node--node-embed node--profile--node-embed clearfix">
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<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Corynne</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">McSherry</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Legal Director</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:corynne@eff.org">corynne@eff.org</a></div></div></div> </div>
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<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Kit</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Walsh</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Staff Attorney</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:kit@eff.org">kit@eff.org</a></div></div></div> </div>
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</div></div></div>Fri, 01 Apr 2016 21:50:40 +0000karen91086 at https://www.eff.orgContent ID and the Rise of the Machineshttps://www.eff.org/fr/deeplinks/2016/02/content-id-and-rise-machines
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><h3>Copyright Bots Aren’t Always Bad, But They Shouldn’t Be in Charge</h3>
<p>In 2007, Google built Content ID, a technology that lets rightsholders submit large databases of video and audio fingerprints and have YouTube continually scan new uploads for potential matches to those fingerprints. Since then, a handful of other user-generated content platforms have implemented copyright bots of their own that scan uploads for potential matches.</p>
<p>Platforms have no obligation to seek out and block infringing content, and such an obligation would <a href="https://www.eff.org/deeplinks/2016/01/notice-and-stay-down-really-filter-everything">entrench existing providers by stifling new platforms before they could achieve popularity</a>. But if a large platform decides it’s in its interests to evaluate every item of user material for potential infringement, the process probably must be automated—at least in part. The problem comes when humans fall out of the picture. Machines are good at many things—making the final determination on your rights isn’t one of them.</p>
<h3>Fair Use is Free Speech</h3>
<p>U.S. copyright law recognizes a key limitation on the powers given to copyright owners: <a href="https://www.law.cornell.edu/uscode/text/17/107">fair use</a>. Fair use protects a wide range of completely valid uses of copyrighted works, uses that are not considered copyright infringement.</p>
<p>Part of why we take fair use so seriously here at EFF is that it’s an essential part of protecting free speech. A law that says you can’t use a certain work without the author’s permission <i>under any circumstances</i> curbs your right to speak about that work or its author or adapt it as part of expressing your own message. When you hear powerful content owners put down fair use—treating it as an obscure loophole in copyright—they’re really trivializing your First Amendment rights.</p>
<p>The <a href="https://www.eff.org/issues/dmca">Digital Millennium Copyright Act</a> provides for a notice-and-takedown process whereby content owners can disable access to allegedly infringing content. When a takedown happens, the user has the opportunity to appeal it, and when she does, the rightsholder has a limited time to take action against her in a federal court. If the rightsholder doesn’t do anything, the allegedly infringing content is restored. Under the DMCA, platforms that comply with notice-and-takedown are protected from liability for their users’ copyright infringement.</p>
<h3>“I Have Never Had a Day Where I Felt Safe Posting One of My Videos”</h3>
<p>In September, <a href="https://www.eff.org/deeplinks/2015/09/takedown-senders-must-consider-fair-use-ninth-circuit-rules">a federal appeals court confirmed</a> that copyright holders must take fair use into account before sending a takedown notice. That hasn’t stopped many large content owners, though.</p>
<p>Last week, the popular YouTube host Doug Walker released a <a href="https://www.youtube.com/watch?v=zVqFAMOtwaI">scathing critique of the way in which YouTube handles DMCA takedown requests</a>. In Walker’s YouTube series “Nostalgia Critic,” Walker discusses old films and TV shows. The clips he uses are very short, and presented for the purpose of criticizing or satirizing them. Most of the time, his fair use case is obvious.</p>
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<p>
And yet, Walker says, fear of takedowns—and of having to navigate YouTube’s labyrinthine three-strikes system—makes him censor himself every day.</p>
<blockquote><p>It’s clear that this current system is made to be abused and will continue to be abused until A) it’s fixed; or B) the affected channel gets big enough to give the claimants enough bad press to scare them into not filing the claim. And that shouldn’t be how things are done. I’ve been doing this professionally for over eight years, and I have never had a day where I felt safe posting one of my videos even though the law states <i>I should be safe posting one of my videos</i>.</p></blockquote>
<p>Most frustrating of all to Walker and the other critics featured in his video, a lot of the time, they’re the only humans who ever see the takedown. When there’s no easy, informal way for the recipient of a takedown notice to discuss the takedown with the rightsholder (a <a href="https://www.eff.org/pages/fair-use-principles-user-generated-video-content">dolphin hotline</a>, as we like to call it), confusion and frustration abound.</p>
<h3>Don’t Outsource Fair Use to Robots</h3>
<p>But some people want to take takedowns in the opposite direction, to require even <i>less</i> human involvement. In recent months, <a href="https://www.eff.org/deeplinks/2016/01/notice-and-stay-down-really-filter-everything">certain lobbyists have begun advocating for a filter-everything system</a>: under filter-everything, once a takedown notice goes uncontested, the platform would have to filter and block <i>any future uploads of the same allegedly infringing content</i>.</p>
<p>There are a number of problems with filter-everything. It would put a huge burden on content platforms, especially ones that don’t have the resources of YouTube. It could also compromise users’ privacy—see <a href="https://www.eff.org/deeplinks/2015/11/why-facebook-inspecting-your-private-videos">Facebook’s misguided efforts</a> to filter its users’ private video uploads. But worst of all, it would create a situation where most takedowns happen instantly, with no human involvement at all.</p>
<p><a href="https://www.eff.org/pages/fair-use-principles-user-generated-video-content">Implemented correctly</a>, copyright bots could weed out cases of obvious infringement and obvious non-infringement, letting participants focus their attention on the cases that demand a serious fair use analysis (or, perhaps, to choose not to attempt to censor speech that has a good chance of being non-infringing).</p>
<p>Unfortunately, as the use of copyright bots has become more popular, artists have had to teach themselves tricks to work around the bots’ logic rather than fully enjoy the freedoms fair use was designed to protect.</p>
<p>The beauty of fair use is in its flexibility. Fair use has been interpreted to permit many kinds of <a href="https://www.eff.org/deeplinks/2015/10/victory-users-librarian-congress-renews-and-expands-protections-fair-uses">innovative, transformative uses of copyrighted works</a>—uses that didn’t exist when the law was written. Fair use doesn’t build a fence around innovation; it lights the way to new possibilities. No machine can do that.</p>
<p><em>This week is <a href="http://fairuseweek.org/">Fair Use Week</a>, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.</em></p>
</div></div></div>Fri, 26 Feb 2016 17:29:49 +0000elliot90569 at https://www.eff.orgCommentaryFair UseDMCANo Downtime for Free Speech“Notice-and-Stay-Down” Is Really “Filter-Everything”https://www.eff.org/fr/deeplinks/2016/01/notice-and-stay-down-really-filter-everything
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><h3>The Proposal Is Unfair to Both Users and Media Platforms</h3>
<p>There’s a debate happening right now over copyright bots, programs that social media websites use to scan users’ uploads for potential copyright infringement. A few powerful lobbyists want copyright law to require platforms that host third-party content to employ copyright bots, and require them to be stricter about what they take down. Big content companies call this nebulous proposal “notice-and-stay-down,” but it would really keep <i>all</i> users down, not just alleged infringers. In the process, it could give major content platforms like YouTube and Facebook an unfair advantage over competitors and startups (as if they needed any more advantages). “Notice-and-stay-down” is really “filter-everything.”</p>
<p>At the heart of the debate sit the “safe harbor” provisions of U.S. copyright law (<a href="https://www.law.cornell.edu/uscode/text/17/512">17 U.S.C. § 512</a>), which were enacted in 2000 as part of the <a href="https://www.eff.org/issues/dmca">Digital Millennium Copyright Act</a>. Those provisions protect Internet services from monetary liability based on the allegedly infringing activities of their users or other third parties.</p>
<p>Section 512 lays out various requirements for service providers to be eligible for safe harbor status—most significantly, that they comply with a notice-and-takedown procedure: if you have a reasonable belief that I’ve infringed on your copyright, you (or someone acting on your behalf) can contact the platform and ask to have my content removed. The platform removes my content and notifies me that it’s removed it. I have the opportunity to file a counter-notice, indicating that you were incorrect in your assessment: for example, that I didn’t actually use your content, or that I used it in a way that didn’t infringe your copyright. If you don’t take action against me in a federal court within 14 days, my content is restored.</p>
<p>The DMCA didn’t do much to temper content companies’ accusations that Internet platforms enable infringement. In 2007, Google was facing a lot of pressure over its recent acquisition YouTube. YouTube complied with all of the requirements for safe harbor status, including adhering to the notice-and-takedown procedure, but Hollywood wanted more.</p>
<p>Google was eager to court those same companies as YouTube adopters, so <a href="https://www.eff.org/deeplinks/2015/05/congrats-10-year-anniversary-youtube-now-please-fix-content-id">it unveiled Content ID</a>. Content ID lets rightsholders submit large databases of video and audio fingerprints. YouTube’s bot scans every new upload for potential matches to those fingerprints. The rightsholder can choose whether to block, monetize, or monitor matching videos. Since the system can automatically remove or monetize a video with no human interaction, it often removes videos that make lawful fair uses of audio and video.</p>
<p>Now, <a href="https://www.federalregister.gov/articles/2015/12/31/2015-32973/section-512-study-notice-and-request-for-public-comment">some lobbyists think that content filtering should become a legal obligation</a>: content companies are proposing that once a takedown notice goes uncontested, the platform should have to filter and block <i>any future uploads of the same allegedly infringing content</i>. In essence, content companies want the law to require platforms to develop their own Content-ID-like systems in order to enjoy safe harbor status.</p>
<p>For the record, the notice-and-takedown procedure has its problems. It results in alleged copyright infringement being treated differently from any other type of allegedly unlawful speech: rather than wait for a judge to determine whether a piece of content is in violation of copyright, the system gives the copyright holder the benefit of the doubt. You don’t need to look far to find examples of <a href="https://www.eff.org/takedowns">copyright holders abusing the system</a>, silencing speech with dubious copyright claims.</p>
<p>That said, safe harbors are essential to the way the Internet works. If the law didn’t provide a way for web platforms to achieve safe harbor status, services like YouTube, Facebook, and Wikipedia could never have been created in the first place: the potential liability for copyright infringement would be too high. Section 512 provides a route to safe harbor status that most companies that use user-generated content can reasonably comply with.</p>
<p>A filter-everything approach would change that. The safe harbor provisions let Internet companies focus their efforts on creating great services rather than spend their time snooping their users’ uploads. Filter-everything would effectively shift the burden of policing copyright infringement <i>to the platforms themselves</i>, undermining the purpose of the safe harbor in the first place.</p>
<p>That approach would dramatically shrink the playing field for new companies in the user-generated content space. Remember that the criticisms of YouTube as a haven for infringement existed <a href="http://www.nytimes.com/2006/09/30/business/30tube.html">well before Google acquired it</a>. The financial motivators for developing a copyright bot were certainly in place pre-Google too. Still, it took the programming power of the world’s largest technology company to create Content ID. What about the next YouTube, the next Facebook, or the next SoundCloud? Under filter-everything, there might not be a <i>next</i>.</p>
<p>Here’s something else to consider about copyright bots: they’re not very good. Content ID routinely flags videos as infringement that <a href="https://www.eff.org/deeplinks/2015/11/why-facebook-inspecting-your-private-videos">don’t copy from another work at all</a>. Bots also don’t understand the complexities of fair use. In September, <a href="https://www.eff.org/deeplinks/2015/09/takedown-senders-must-consider-fair-use-ninth-circuit-rules">a federal appeals court confirmed</a> that copyright holders must consider fair use before sending a takedown notice. Under the filter-everything approach, legitimate uses of works wouldn’t get the reasonable consideration they deserve. Even if content-recognizing technology were airtight, computers would still not be able to consider a work’s fair use status.</p>
<p>Again and again, <a href="https://www.eff.org/deeplinks/2015/11/why-facebook-inspecting-your-private-videos">certain powerful content owners seek to brush aside the importance of fair use</a>, characterizing it as a loophole in copyright law or an old-fashioned relic. But without fair use, copyright isn’t compatible with the First Amendment. Do you trust a computer to make the final determination on your right to free speech?</p>
<p><a href="https://www.eff.org/copyrightweek"><img src="https://www.eff.org/files/2016/01/19/social-copyrightweek.png" class="align-right" height="auto" width="300" /></a><i>We're taking part in <a href="https://www.eff.org/copyrightweek">Copyright Week</a>, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation.</i></p>
</div></div></div>Thu, 21 Jan 2016 23:31:56 +0000elliot90142 at https://www.eff.orgCommentaryFair UseCopyright TrollsDMCAFixing Copyright? The 2013-2016 Copyright Review ProcessNo Downtime for Free SpeechCreativity & InnovationOnce Again, DMCA Abused to Target Political Adshttps://www.eff.org/fr/deeplinks/2015/11/once-again-dmca-abused-target-political-ads
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>If you live in San Francisco (or spend much time on social media) you probably saw a lot of discussion last month about <a href="http://www.sfgate.com/bayarea/article/Prop-F-Measure-to-restrict-Airbnb-rentals-6609176.php">Proposition F</a>, a controversial proposal to regulate short-term property rental services like Airbnb. You may also know that <a href="https://ballotpedia.org/City_of_San_Francisco_Initiative_to_Restrict_Short-Term_Rentals,_Proposition_F_%28November_2015%29#Campaign_finance_2">Airbnb spent millions opposing the measure</a>, many times the budget of the proposition’s supporters. Here’s what you might not know: the bill’s opposition also got a little unexpected assistance from the <a href="https://www.eff.org/issues/dmca">DMCA (Digital Millennium Copyright Act) takedown process</a>.</p>
<p>Just a week before the vote, the only television ad supporting the measure disappeared from TV, YouTube, and the <a href="http://www.sharebettersf.com/">website of the organization that created it</a>. <a href="https://archive.org/embed/KGO_20151016_230000_ABC7_News_400PM&amp;start=794.7&amp;end=824.7">Watch the ad yourself</a> and see if you can guess why:</p>
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<p>
Did you catch it? The “Hotel San Francisco” lyric and the soundalike background music were enough to earn a cease-and-desist letter and DMCA takedown notice from attorneys representing The Eagles’ Don Henley and Glenn Frey. Henley and Frey’s lawyers threatened to sue for massive damages if ShareBetterSF didn’t pull the ad.</p>
<p>If this story sounds familiar, that might be because political ads are often the targets of unfair DMCA takedowns. In 2008, the <a href="https://www.eff.org/takedowns/cbs-news-censors-mccain-ad-during-heated-presidential-campaign">Obama</a> and <a href="https://www.eff.org/takedowns/nbc-issues-takedown-viral-obama-ad">McCain</a> campaigns were both hit with takedown notices for using news footage in their advertisements (from CBS and NBC, respectively). In 2009, NPR filed a YouTube takedown notice on <a href="https://www.eff.org/takedowns/npr-forces-takedown-political-ad-weeks-critical-vote">an ad that criticized same-sex marriage</a>; the ad had used a brief soundbite from an NPR program. In all three cases, a court would have recognized that the campaigns were within their rights. The ads use the clips simply to provide information; they don’t imply the news organizations’ endorsement or affect their viewership in any way. But thanks to the DMCA’s takedown-first-and-ask-questions-later procedure, none of them ever went to court.</p>
<p>The makers of “Hotel San Francisco” were clearly in the right too, but it didn’t matter. <a href="https://blog.archive.org/2015/11/04/pro-airbnb-advertising-dominated-recent-political-tv-ads-in-san-francisco/">As they told the Internet Archive</a>, there was no purpose in challenging the takedown. Even if they had immediately counter-noticed, the ad still wouldn’t have been restored for 2 weeks—too late to have any effect on the election. Once again, the DMCA was used to shut down political expression with no consequences for the sender. As the 2016 campaigns get into full swing, expect to see more of this kind of abuse.</p>
<p>This story might give you <i>déjà vu</i> for another reason: it’s not the first time Don Henley has accused the creators of a satirical political ad of copyright infringement. In 2010, <a href="https://www.eff.org/deeplinks/2010/06/henley-v-devore-second-class-citizenship-satire">Henley sued Senate candidate Charles DeVore</a> for his parodies of two songs in political advertisements. A U.S. District Court <a href="http://jolt.law.harvard.edu/digest/copyright/henley-v-devore">rejected Henley’s claim</a> that the ads falsely implied that he’d endorsed DeVore, but ruled that they did constitute infringement of his copyright.</p>
<p>We disagreed with that ruling, but whatever you might think of it, the facts here are very different. ShareBetterSF selected “Hotel California” to make a specific political point. The use was noncommercial and highly transformative, and it couldn’t possibly harm any market for the original work—all factors favoring fair use. But none of that mattered in light of the takedown.</p>
<p>Again and again, overzealous DMCA takedowns disregard fair use. That’s unfortunate, because fair use is designed to ensure that copyright law is compatible with the First Amendment. <a href="https://www.eff.org/deeplinks/2015/09/takedown-senders-must-consider-fair-use-ninth-circuit-rules">When fair use is overlooked in the face of a takedown notice</a>, it really means that freedom of speech is compromised.</p>
<p>EFF is fighting to make sure <a href="https://www.eff.org/cases/lenz-v-universal">the targets of DMCA abuse can hold the abusers accountable</a>. In the meantime, we have been documenting the worst abuses in our <a href="https://www.eff.org/takedowns">Takedown Hall of Shame</a>. Given its dangerous consequences for political speech, <a href="https://www.eff.org/takedowns/what-not-nice-surprise-eagles-target-political-ad">this takedown has earned a spot</a>.</p>
</div></div></div>Wed, 18 Nov 2015 01:47:51 +0000elliot88957 at https://www.eff.orgCommentaryFair UseDMCANo Downtime for Free SpeechBreaking Section 230’s Intermediary Liability Protections Won't Fix Harassmenthttps://www.eff.org/fr/deeplinks/2015/10/breaking-section-230s-intermediary-liability-protections-wont-fix-harassment
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>As we've noted before, <a href="https://www.eff.org/deeplinks/2015/01/facing-challenge-online-harassment">online harassment is a pressing problem</a>—and a problem that, thankfully and finally, many are currently working on together to mitigate and resolve. Part of the long road to creating effective tools and policies to help users combat harassment is drawing attention to just how bad it can be, and using that spotlight to propose fixes that might work for everyone affected.</p>
<p>But not all of the solutions now being considered will work. In fact, some of them will not only <em>fail</em> to fix harassment, but they will actually place drastic limitations on the abilities of ordinary users to work together, using the Net, to build and agitate real, collective solutions.</p>
<p>One <a href="http://techcrunch.com/2015/09/29/mr-obama-tear-down-this-liability-shield/">proposal</a> raised recently by Arthur Chu falls into this latter category. Chu suggests that intermediaries—anyone who runs an online server that acts as a host for users' speech—should be made jointly responsible for the content of that speech. His theory is that if you make a middle-man—such as an ISP like Facebook, Twitter, or YouTube, the host of a discussion forum, or a blog author—legally responsible for what their users' or commenters say, then they will have a strong incentive to make sure that their users don't harass others using their platform.</p>
<p>In the United States, the primary protection against such broad intermediary liability is <a href="https://www.eff.org/issues/cda230">CDA 230</a>—a statute which Chu thinks should be dismantled. As courts in the United States have recognized, the immunity granted under CDA 230 actually encourages service providers and other online intermediaries to self-regulate—<em>i.e</em>., to police and monitor third-party content posted through their services. Prior to the enactment of CDA 230, a service provider could be held liable if it tried to self-regulate but did so unsuccessfully—a framework which actively discouraged intermediaries from regulating potentially objectionable content on their sites.</p>
<p>CDA 230 is currently one of the <a href="https://www.eff.org/deeplinks/2012/12/effs-guide-cda-230-most-important-law-protecting-online-speech">most valuable tools</a> for protecting freedom of expression and innovation on the Internet. Countries around the world have similar protections for online intermediaries, and, through initiatives including <a href="https://www.manilaprinciples.org/">the Manila Principles</a>, human rights groups <a href="https://www.manilaprinciples.org/organization-signatories">around the world</a> have campaigned in favor of such protections. Such groups include Article 19, the <a href="http://www.apc.org/en/irhr/intermediary-liability">Association for Progressive Communications</a>, the <a href="https://www.cpj.org/">Committee to Protect Journalists</a>, <a href="https://www.change.org/">Change.org</a> and <a href="http://www.freepress.net/">Free Press</a>, as well as national human rights organizations from various counties, ranging from <a href="http://arabdigitalexpression.org/">Egypt</a> and <a href="http://mediamatters.pk/">Pakistan</a> to <a href="https://www.efa.org.au">Australia</a> and <a href="https://openmedia.ca/">Canada</a>.</p>
<p>And there is good reason for the law to protect online intermediaries from liability based on what other people say online. The primary reason <a href="https://www.article19.org/resources.php?tagid=518&amp;lang=en">so many</a> around the world have fought for, and continue to fight for, intermediary liability protections is straightforward. If you're speaking up for an unpopular truth against powerful interests, one of the best ways they have to silence your objections is to legally intimidate intermediaries. Intermediaries' interests differ from their users, and while many hosts of Internet content make strong statements in favor of their users -- in defense of their ability to speak freely or feel safe online -- given the choice between defending the users and fighting an expensive legal battle (even if there is a good chance they’d win), it's clear which route many will take. Some intermediaries may not have the resources to even consider going to court. In other words, getting rid of CDA 230 liability protection acts as a de facto tax on intermediaries that wish to protect the free expression of their users.</p>
<p>But it's worse than that. An intermediary fearful of liability based on the actions of its users may also proactively modify its site to remove the possibility of a lawsuit altogether. Intermediaries have a powerful ability to control what conversations take place on their networks. In a world where litigation is an ever-present threat, intermediaries will set up environments where contentious conversations never happen in the first place.</p>
<p>For those arguing against CDA 230, that's the whole point of weakening its protections. They argue that intermediaries are best suited to filter and guide online speech until the risk of harassment is eliminated. Hang the sword of litigation over those potential gatekeepers, proponents say, and they'll quickly put in place rules and algorithms to permanently dismiss harassment from their networks, even before it occurs.</p>
<p>But victims of harassment are very low down the list of potential litigants that intermediaries would have to listen to in a post-CDA 230 world. Attorney Ken White phrases it this way in <a href="https://popehat.com/2015/09/29/arthur-chu-would-like-to-make-lawyers-richer-and-you-quieter-and-poorer/">his analysis</a> of Chu’s proposal: “Justice may not depend <em>entirely</em> on how much money you have, but that is probably the most powerful factor.” Before them would come <a href="https://popehat.com/2015/09/29/arthur-chu-would-like-to-make-lawyers-richer-and-you-quieter-and-poorer/">the rich and influential</a>, such as politicians and, in many cases, the harassers themselves. After all, much online harassment is intended to silence the victims and intimidate them into leaving the network. What better way to do so than to threaten the host with a lawsuit if they don't throw the victim offline? The threat might be empty, but if the host isn’t willing to engage in expensive litigation, one threatening letter might be sufficient. Today, CDA 230 helps ensure this can’t happen.</p>
<p>Chu makes the argument that CDA 230 is not universal, and that other countries survive without it. This is technically true. CDA 230 is a U.S. law. But it has been a critical law for protecting online speech and innovation in the US, and most countries either have some form of intermediary liability protection or are gradually increasing such provisions through <a href="http://www.legislation.gov.uk/ukpga/2013/26/contents/enacted">new law</a> or judgments.</p>
<p>Notably, countries that have experimented with markedly lesser intermediary protections have not solved or mitigated the problem of online harassment. To the contrary, the evidence suggests that opening intermediaries to liability leaves harassment unaffected, while enabling others, including governments and powerful political interests, to use the law to harass and silence legitimate speakers—often those in a less powerful position. For example, India's <a href="https://techlawforum.wordpress.com/2014/10/07/intermediary-liability-an-explanation/">fifteen year experiment</a> with broad intermediary liability, in the form of the 2000 IT Act, saw <a href="http://www.bbc.com/news/world-asia-india-33532706">no effective limits on harassment</a>. A 2011 study of intermediaries' response to take-down requests under the Indian law showed that out of 7 intermediaries sent a flawed takedown notices, 6 over-complied with the removal request. The laws' key provisions regarding liability and censorship were successfully challenged by <a href="http://www.ndtv.com/india-news/section-66-a-scrapped-meet-shreya-singhal-petitioner-who-fought-for-net-freedom-749143">Shreya Singhal</a>, after two women were arrested for a comment critical of the public response to the death of a local politician (one of the women had only "liked" the post).</p>
<p>In Thailand, intermediaries <a href="http://www.prachatai.com/english/node/117">share liability with their users</a>. Such shared liability has resulted in cases against the representatives of intermediaries, from private prosecutions against <a href="http://marketingland.com/thailand-criminal-charges-filed-google-shutting-defamatory-blog-93743">Google</a>'s entire board by ex-pat businessmen seeking to shut down a critical blog, to the criminal prosecution of Chiranuch Premchaipron, the manager of a <a href="http://www.prachatai.com/english/">non-profit newspaper</a> whose discussion forum included user comments critical of the monarchy. Yet, Thai intermediaries have not taken any novel steps to combat personal harassment, and the frequency of reported incidents of individual harassment remain no different or <a href="http://academic-journals.org/ojs2/index.php/IJCSE/article/viewFile/1032/137">may even be higher</a> than comparable countries.</p>
<p>Chu does at least acknowledge the wider effect of overturning CDA 230. In online conversation after posting his op-ed, he conceded that a huge chunk of social media would disappear and <a href="https://twitter.com/arthur_affect/status/649014297318682624">challenged the idea</a> that a world without YouTube, Twitter, Vine, and Internet comments in general would be such a great loss. To Chu, it seems that an Internet that worked the same way as a letter to the editor—where only those who reach certain standards of editorial acceptability would have a voice—would be a better Internet.</p>
<p>On this point we respectfully, and strongly, disagree. Those fighting harassment, both offline and on, have used the Internet incredibly effectively to speak up and organize. Raising the issue has led to an uncomfortable conversation which those targeted for criticism: intermediaries, the powerful, and politicians must often wish could go away. Those fighting harassment have been threatened with lawsuits and worse to silence them. An online world without CDA 230 would still allow harassment to exist, but it would profoundly limit the ability of any of us to hear from its targets, recognize the scale of the problem, and identify real, practical solutions.</p>
<p>Speaking up and organizing is what gets pervasive issues like harassment dealt with in the long run. Making intermediaries responsible for policing their users will silence such efforts and lead to an Internet that is safer for powerful actors, but not an Internet that is safe for everyday users.</p>
</div></div></div>Fri, 02 Oct 2015 22:21:33 +0000danny88109 at https://www.eff.orgCommentaryNo Downtime for Free SpeechFree SpeechSection 230 of the Communications Decency ActInternationalNew Zealand's Harmful Digital Communications Act: Harmful to Everyone Except Online Harassershttps://www.eff.org/fr/deeplinks/2015/07/nz-digital-communications-act-considered-very-harmful
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Last week, the New Zealand Parliament passed the <a href="http://www.legislation.govt.nz/bill/government/2013/0168/latest/whole.html">Harmful Digital Communications</a> (HDC) Act. The act was conceived over three years ago as <a href="http://www.lawcom.govt.nz/our-projects/regulatory-gaps-and-new-media">an initiative</a> to address online bullying among young New Zealanders. Since then, prompted by <a href="http://www.theguardian.com/world/2015/mar/19/new-zealand-police-apologise-to-roast-busters-victims">subsequent</a> highly visible online <a href="http://www.smh.com.au/lifestyle/celebrity/charlotte-dawson-found-dead-20140222-338j6.html">scandals</a> in the country, its scope widened dramatically. The final act takes on nothing less than all content on the Internet that might be deemed harmful.</p>
<p>But in its eagerness to prevent "harmful" communications from spreading across the Net, and by providing streamlined, non-judicial methods to remove that content, the creators of the HDC Act may end up exacerbating the very harassment it was originally intended to mitigate. Many harassers want to chase their victims offline; they use their voices to drown out and silence the online voices of others. And through its adoption of some of the worst aspects of United States Internet law, the HDC Act provides a new tool for those online harassers to enact that wish.</p>
<p>The HDC Act has five key elements:</p>
<ul><li>It establishes a set of guiding <a href="http://www.legislation.govt.nz/bill/government/2013/0168/latest/whole.html#DLM5711838">Communication Principles</a> under which the rest of the bill operates</li>
<li>It creates a government-approved <a href="http://www.legislation.govt.nz/bill/government/2013/0168/latest/whole.html#DLM5711840">agency</a> to help Internet users who believe themselves harmed by digital communications.</li>
<li>It creates a new <a href="http://www.legislation.govt.nz/bill/government/2013/0168/latest/whole.html#DLM5711853">set of court orders</a> that New Zealand's District Courts can serve against Internet hosts or authors, on referral from the Approved Agency.</li>
<li>It constructs a new set of <a href="http://www.legislation.govt.nz/bill/government/2013/0168/latest/whole.html#DLM5711854">civil and criminal offenses</a> for creating or propagating "harmful digital communications"</li>
<li>And in its <a href="http://www.legislation.govt.nz/bill/government/2013/0168/latest/whole.html#DLM6124417">Section 20</a>, it introduces a new 48-hour content takedown process, loosely based on the United States' DMCA takedown regime, whereby individuals can demand online hosting providers remove content they believe is harmful.</li>
</ul><p>The Act also makes some amendments to existing law to clarify their applicability to digital communications, and slightly extends their reach.</p>
<p>Some parts of the Act's unintended consequences are fixable through the reasonable administration of the law, and secondary legislation that narrows its scope. The bulk of the Act is enforced under judicial review, which will hopefully give sufficient weight to its stipulation that both administrators and courts "act consistently with the rights and freedoms contained in the <a href="http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/domestic-human-rights-protection/about-the-new-zealand-bill-of-rights-act">New Zealand Bill of Rights Act 1990</a>".</p>
<p>The human rights perspective offered by the Bill of Rights Act is badly needed. The HDC Act’s <a href="http://www.legislation.govt.nz/bill/government/2013/0168/latest/whole.html#DLM5711837">Communication Principles</a> illustrate the law's curious view of what legitimate online content should be. Among other things, the Principles state that digital communications should not: “disclose sensitive personal facts about an individual"; “be grossly offensive to a reasonable person in the position of the affected individual"; "make a false allegation", or "contain a matter that is published in breach of confidence."</p>
<p>In focusing on "harmful" communications, the Act consistently neglects all other forms of communication that might seem less than ideal, but are nonetheless protected speech. Much of human expression is in contravention of one or more of the Principles. From private disagreements to a viral video of police brutality, a whistleblower's leak or a heartfelt political call to arms: if the full spectrum of human expression happens to be expressed online, the HDC Act applies. These Principles demonstrate that New Zealand now holds digital communications to a far higher and narrower standard than any form of offline expression.</p>
<p>New Zealand's Bill of Rights limitation only applies to the courts and administrators of the HDC Act. In Section 20, New Zealand's lawmakers have created a novel regime that, like its DMCA 512 inspiration, involves no court or regulatory oversight. And in Section 20, New Zealand's legislators have imported an already broken process, and rendered it even more inimical to free expression.</p>
<h2 id="section-20-of-the-hdc-like-the-dmca-but-even-worse">Section 20 of the HDC: Like the DMCA, but Even Worse</h2>
<p>First, a brief recap on how the United States' <a href="https://www.law.cornell.edu/uscode/text/17/512">DMCA S.512 takedown regime</a> is intended to operate:</p>
<ul><li>Intermediaries, such as Google, Facebook or your local website hosting company, are, under US law, broadly protected against lawsuits over their users' uploaded content.</li>
<li>Their protection against intellectual property law is however conditional on them complying with the DMCA's special copyright "safe harbor" rules.</li>
<li>Part of those safe harbor rules kick in when an intermediary receives a request from a copyright owner to take down an infringing work uploaded by one of their users.</li>
<li>If the intermediary swiftly takes down the content, they are automatically protected from being themselves sued by the copyright owner. The intermediary is also protected from being sued for damages by the uploader caused by them suddenly deleting their content.</li>
</ul><p>The DMCA takedown process is an attempt to create a regime where copyright law can be enforced without the courts, where copyright holders and Internet authors have balanced rights, and where hosts like Google or your ISP are freed from the responsibility of determiningthe legal accuracy of a takedown request. If intermediaries remove content as soon as a copyright holder complains, they're generally safe from legal harm.</p>
<p>In practice, however, the DMCA 512 regime has proven to be <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2210935">painfully lopsided</a> in its incentives. The letter of the law says that takedown requests must be made in good faith under the penalty of perjury. But even with these restrictions in the law, <a href="https://www.eff.org/takedowns">inaccurate takedowns</a> are rife, and are sent with no legal consequences.</p>
<p>It also transpires that in the real world, intermediaries are far more worried about being sued by rich and powerful copyright rights holders like music labels and movie companies, than they are concerned about legal action from their own users. This, and other problems (including users not knowing about their right to counter-notice to restore content) mean that the DMCA is frequently misused to remove content that is perfectly legitimate. EFF has <a href="https://www.eff.org/issues/dmca">documented</a> this chilling effects of the DMCA regime for over fifteen years.</p>
<p><a href="http://www.legislation.govt.nz/bill/government/2013/0168/latest/whole.html#DLM6512504">Section 20</a> of New Zealand's HDC attempts to map and expand this already flawed system onto a regime for the speedy takedown of all "harmful" content online. In the HDC model, complainants who have spotted content that breaches the Communication Principles and has "caused harm" can send a takedown order to the intermediary. The intermediary sends a notice of this order to the author of the allegedly "harmful" content. If the author challenges the original takedown within 48 hours, the content stays up; otherwise it is removed. If <a href="https://www.gliffy.com/go/publish/8456595">the intermediary follows these rules</a>, they remain protected from being sued themselves over the content. In effect, it's a DMCA-like safe harbor, but for all potentially "harmful" content.</p>
<p>Sound reasonable? The drafters of the HDC Act clearly thought so. But in uncomprehendingly mimicking the DMCA 512 regime, they omitted what few safeguards the original has against unfettered abuse.</p>
<p>Unlike the DMCA, there is no penalty for misrepresentation in the HDC Act. Section 20 complainants can declare any content "harmful", and will suffer even fewer repercussions from misrepresenting their belief than the copyright industries faces for illegitimate copyright takedowns in the United States.</p>
<p>Unlike the DMCA, where (in theory) only the rightsholder can make a complaint, under Section 20, anyone can send a note to your New Zealand host and request your content be removed. And, under the current letter of the HDC Act, each of those millions potential complainants can demand a removal as many times as they want.</p>
<p>The HDC Act magnifies the well-documented flaws of the DMCA into the perfect heckler's veto. This is an ideal tool for a coordinated harassing mob—or simply a large crowd that disapproves of a particular piece of unpopular, but perfectly legitimate speech. Moreover, if the original user misses the 48-hour window to respond to a takedown order, then they will have no legal avenue to restore their deleted work.</p>
<p>It's worth considering exactly who might be most likely to miss that 48-hour deadline. Certainly, a vulnerable user facing hundreds or thousands of coordinated, malicious complaints might find herself quickly overwhelmed. Another type of user who might be reticent to serve a Section 20 counternotice is one who would choose not to share much personal identifying information with their hosts, and is therefore more difficult to contact by the intermediary. Vulnerable classes of Internet speakers often do this so as to limit the risk of being doxxed—they are rightly suspicious of providing third parties like hosting intermediaries with personal details, out of fear that the intermediary might accidentally reveal that to attackers, so they use pseudonymous accounts or otherwise hide their real identities. These users may not be reading the throwaway email or other contacts details they provided:if they provided any at all.</p>
<p>Section 20 has another flaw for this particular class of vulnerable user. The HDC Act's takedown orders and counter-notices require personal information, both from the complainant and the original publisher. A user attempting to keep his content up must hand over his "[name] and a telephone phone number, a physical address, and an email address" to the ISP. The user must also specify whether that data should be handed over to complainant. A user who checks the wrong box by mistake may find her attempt to restore her account results in personal details being handed over to the person trying to delete her works from the Internet.</p>
<p>Section 20 is clearly an attempt to create a streamlined way for injured users to speedily remove content that they find seriously emotionally distressing from the Internet without having to go through the slower process of judicial oversight. But given the precedent set by the DMCA, New Zealand's lawmakers should have anticipated that such a short circuit can and will be abused. Section 20's current design means that the most likely scenario for abuse is harassers either mis-using it to erase their targets from the Net, or extracting from them personally identifying information that will be used against them. It is almost engineered to be a tool for angry mobs, or doxxing attackers.</p>
<h2 id="a-broken-law-already-in-place">A Broken Law, Already in Place</h2>
<p>Despite <a href="http://techliberty.org.nz/tag/hdc/">warnings</a> from the Internet community, the HDC Act sailed through New Zealand’s Parliament with an overwhelming majority, opposed only by a small number of Green MPs and the single MP for New Zealand's free market ACT Party.</p>
<p>The Act received Royal Assent on Monday. While much of the HDC Act only comes into force within two years, Section 20 is already in effect. New Zealand-based intermediaries or foreign companies with offices in New Zealand must already comply with takedown requests, or risk losing their liability protections.</p>
<p>Like the DMCA, much of the negative consequences of the HDC Act may turn out to be hard to track. An invisible set of victims, the subject of takedowns that they do not know or are too intimidated to counter-notice against. Speech that is no longer published because intermediaries are too cautious to host it, or because potential speakers fear liability under the HDC Act.</p>
<p>And that, unfortunately, is the optimistic scenario. Instead, New Zealand may be entering a far more bumpy ride, with the HDC being turned into a weapon of those it was originally intended to thwart: online bullies, who want to intimidate and silence others, and are perfectly happy to abuse a well-meaning law to do so.</p>
</div></div></div>Thu, 09 Jul 2015 02:38:28 +0000danny86798 at https://www.eff.orgDMCANo Downtime for Free SpeechInternationalIs Every Orc an Author? On Rehearing, Judges Challenge 5-Second Copyright in Garcia v. Googlehttps://www.eff.org/fr/deeplinks/2014/12/every-orc-author-rehearing-judges-challenge-5-second-copyright-garcia-v-google
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>A panel of eleven Ninth Circuit federal judges heard oral arguments yesterday in <a href="https://www.eff.org/cases/garcia-v-google-inc"><em>Garcia v. Google</em></a>, a copyright case arising from the notorious "Innocence of Muslims" video that was associated with violent protests around the world. The appellant, Cindy Lee Garcia, argues that she holds a copyright in her five-second performance in the video (a performance she says was tricked into giving), and is trying to use that claim to get the video pulled off the internet. To the shock of many, last February two Ninth Circuit judges agreed she might have a claim and <a href="https://www.eff.org/deeplinks/2014/02/bad-facts-really-bad-law-court-orders-google-censor-controversial-video-based">ordered Google</a> to remove the video from YouTube and prevent future uploads. <a href="https://www.youtube.com/watch?v=EMTaBkOBR2Q">Yesterday’s hearing</a> revisited the facts and law that led to that decision. </p>
<p>The judges grilled Garcia’s counsel on the question of copyrightability, challenging the notion that Garcia’s five-second performance could be a copyrightable work. “Could any person who appeared in the battle scenes of the Lord of the Rings claim rights in the work?” asked Judge Margaret McKeown. And, she wondered, wasn’t this case really an issue of possible fraud, not copyright infringement?</p>
<p>Judge Alex Kozinski, however, suggested that the<a href="https://www.eff.org/deeplinks/2012/07/beijing-treaty-audiovisual-performances"> Beijing Treaty on Audiovisual Performances</a>, which recognizes certain performance rights for actors, requires courts to recognize Ms. Garcia’s claimed copyright interest. However, the treaty is not yet in force, in the U.S. or anywhere else. In any event, as Google counsel explained, it is not clear that the treaty would create a copyright interest in a five-second performance that was part of a much longer work. Judge Kozinski also compared Ms. Garcia’s claim to a 1977 case involving a short performance by a “human cannonball.”</p>
<p>Google’s counsel stressed the burden on service providers and video-makers of recognizing a copyright interest in this case. If every person captured doing something creative on film could claim a copyright in it, service providers could find themselves flooded with takedown notices under the DMCA, resulting in the silencing of all kinds of lawful speech. </p>
<p>Google’s counsel also attempted to keep the court focused on the preliminary injunction standard, which requires courts to deny the broad injunctive relief Garcia sought if the law does not “clearly favor” the legal claim. In this case, the overwhelming weight of case law (including a<a href="http://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm"> recent Ninth Circuit opinion</a>) and even the Copyright Office clearly <i>dis</i>favors Garcia’s theory. In our view, that, by itself, should have resolved the question.</p>
<p>Monday's hearing follows months of controversy. EFF and many other public interest groups have filed friend-of-the-court briefs in the case, noting (among other concerns) that actors generally do not have a copyright in their performances and that in any case <a href="https://www.eff.org/deeplinks/2014/07/ninth-circuit-doubles-down-in-garcia-v-google">neither Garcia nor the earlier opinion had justified a prior restraint of speech</a>. We hope the Ninth Circuit quickly comes to the same conclusion and lifts the injunction.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/garcia-v-google-inc">Garcia v. Google, Inc</a></div></div></div>Tue, 16 Dec 2014 16:50:36 +0000corynne83599 at https://www.eff.orgFair UseDMCANo Downtime for Free SpeechFree SpeechShedding a Little Sunlight On a Trademark Bullyhttps://www.eff.org/fr/deeplinks/2014/09/shedding-little-sunlight-trademark-bully
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Another day, another stupid trademark threat. The target this time? The <a href="http://sunlightfoundation.com/">Sunlight Foundation</a>, a nonprofit dedicated to promoting government transparency. As part of its work, it posts detailed information about corporate campaign contributions, information that often includes logos associated with those corporations. One of those corporations, <a href="http://influenceexplorer.com/organization/deloitte-touche/55d2760b974a4134984e1d275e9be636">Deloitte Touche Tohmatsu</a>, objected, and asked that Sunlight remove its logos. The note was quite polite for a takedown, stressing that Deloitte had no objection to the other content on the site (gee, thanks guys!). But polite or not, it's a note that would be pretty intimidating for most individuals, nonprofits, and small businesses who don't have easy access to a lawyer.</p>
<p>Fortunately, Sunlight was not intimidated. They reached out to EFF, and today we <a href="https://www.eff.org/files/2014/09/30/lttdeloitte.pdf">responded </a>on their behalf. As we explained, no person could possibly be confused as to whether Deloitte endorses the Sunlight Foundation or its activities. Moreover, it is well-settled that the First Amendment fully protects the use of trademarked terms and logos in non-commercial websites that comment upon corporations and products. Sunlight's site is a clear example such protected expression. These are all points that Deloitte could have figured out for itself, if it had bothered to give the matter a moment's thought.</p>
<p>That is what is particularly chilling about this takedown. Too often, we see this kind of casual censorship, where owners, (or their agents) shoot off complaints against any use of their marks, without regard for the consequences. Mindless over-enforcement is unnecessary, burdensome, and feeds a censorship culture. It has to stop.</p>
<p>A first step is for Deloitte, and other trademark owners, to adopt enforcement policies that explicitly recognize that their trademark rights do not and cannot trump the First Amendment. Imagine the impact on free speech if you needed a “grant of permission” from BP, Coca-Cola, or EFF before using one of their trademarks as part of speech commenting on their conduct. Fortunately, we don’t live in such a world; no one needs to seek permission for every use of a name or logo.</p>
<p>The second step is for mark owners to finally reject the notion that a mark-holder must enforce its mark in every instance or risk losing it. Quite simply, the view that a trademark holder must trawl the internet and respond to every unauthorized use (or even every infringing use) is a myth. The circumstances under which a company could actually lose a trademark—such as abandonment and genericide—<a href="https://www.eff.org/deeplinks/2013/11/trademark-law-does-not-require-companies-tirelessly-censor-internet">are quite limited</a>. Pretending otherwise is great for some trademark lawyers' bottom lines, but it's irritating and expensive for everyone else. And when done clumsily or maliciously, it chills free expression. Rejecting the myth would not only help the public, it should reduce also mark-holders' legal bills. Win-win, right? Right.</p>
<p> </p>
</div></div></div>Tue, 30 Sep 2014 16:57:01 +0000corynne82480 at https://www.eff.orgFair UseNo Downtime for Free SpeechNinth Circuit Doubles Down in Garcia v. Googlehttps://www.eff.org/fr/deeplinks/2014/07/ninth-circuit-doubles-down-in-garcia-v-google
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>After months of waiting, a Ninth Circuit panel <a href="https://www.eff.org/files/2014/07/11/garciaamended.pdf">has finally responded</a> to Google's plea, supported by public interest groups (<a href="https://www.eff.org/document/garcia-v-google-amicus">including EFF</a>), journalists, librarians, other service providers, and law professors, to reconsider its disastrous opinion in <a href="https://www.eff.org/cases/garcia-v-google-inc">the case of Garcia v. Google</a>. The good news is that we managed to get the panel to revisit its opinion. The bad news is that it essentially doubled down.</p>
<p>Quick background: several months ago, and over a vigorous dissent, a panel majority <a href="https://www.eff.org/deeplinks/2014/02/bad-facts-really-bad-law-court-orders-google-censor-controversial-video-based">ordered Google to remove copies</a> of the notorious Innocence of Muslims film from YouTube. Why? Because one of the actors in the film insists she has a copyright interest in her performance and, based on that interest, claims to have a right to have the video taken offline. Actress Cindy Lee Garcia—who was tricked into appearing on-screen, overdubbed, for five seconds—sued Google to have the footage removed. The district court refused and Garcia appealed. The Ninth Circuit concluded Garcia's copyright claim was "doubtful" but nonetheless ordered Google to remove the film from YouTube and take steps to prevent future uploads.</p>
<p>The uproar was immediate, for good reason. As we and others explained, the order amounts to a prior restraint of speech, something that should never happen where the underlying claim is "doubtful." (In fact the Copyright office later refused to register Garcia's performance). The majority dismissed that concern by claiming that the First Amendment doesn’t protect copyright infringement, which missed the point. The First Amendment does protect lawful speech, which is why courts shouldn’t issue censorship orders in any but the rarest circumstances, and only where it is highly likely that the speech is actually unlawful. What is worse the panel’s ruling was accompanied by a gag order forbidding Google from discussing the ruling for almost a week.</p>
<p>The amended opinion issued today recognizes some of our concerns but continues to sidestep the key issues. Notably, the amended opinion does not address our most basic concern: that the court applied the wrong standard altogether. The takedown order was a mandatory preliminary injunction, which should never occur unless the law and the facts clearly favor the person asking for it. What is worse, the court gave short shrift to the public interest. Innocence of Muslims is doubtless a highly offensive video, but it is also part of the historical record. Thanks to the injunction, the public can continue to discuss the video—but we can't see what we are discussing.</p>
<p>The amended opinion dismissed several other concerns on procedural grounds, insisting that the district court can consider them later:</p>
<blockquote><p>Nothing we say today precludes the district court from concluding that Garcia doesn’t have a copyrightable interest, or that Google prevails on any of its defenses. ...</p>
<p>After we first published our opinion, amici raised other issues, such as the applicability of the fair use doctrine, <i>see</i> 17 U.S.C. § 107, and section 230 of the Communications Decency Act, <i>see</i> 47 U.S.C. § 230. Because these defenses were not raised by the parties, we do not address them. The district court is free to consider them if Google properly raises them.</p></blockquote>
<p>And:</p>
<blockquote><p>First Amendment protections are ‘embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas,’ and in the ‘latitude for scholarship and comment’ safeguarded by the fair use defense.” Golan v. Holder, 132 S. Ct. 873, 890 (2012) (quoting Harper &amp; Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)). Google hasn’t raised fair use as a defense in this appeal, see page 11 supra, so we do not consider it in determining its likelihood of success. This does not, of course, preclude Google from raising the point in the district court, provided it properly preserved the defense in its pleadings.</p></blockquote>
<p>This is profoundly disappointing. When a case clearly implicates the public's right to access the historical record, courts shouldn't kick the can down the road. And as the amended dissent recognizes, the panel had ample legal authority to address the flaws in its opinion, rather than referring them to another court. </p>
<p>Google's request for a rehearing en banc (i.e., a rehearing by the entire court rather than just a three-judge panel) is still pending, so the Ninth Circuit has another chance to revisit the case. Let's hope it does so. </p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/garcia-v-google-inc">Garcia v. Google, Inc</a></div></div></div>Fri, 11 Jul 2014 17:33:06 +0000corynne81340 at https://www.eff.orgFair UseNo Downtime for Free SpeechFree SpeechDear Google: Parody Is Not Trademark Infringementhttps://www.eff.org/fr/deeplinks/2014/05/dear-google-parody-not-trademark-infringement
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Say it ain't so, Google. Two weeks ago, the awesome activists at the Peng! Collective launched a funny and smart satirical site, <a href="http://google-nest.org">google-nest.org</a>, which purported to offer a host of new Google "products," <a href="http://www.forbes.com/sites/ellenhuet/2014/05/07/google-nest-spoof-by-german-activists-promises-eerie-data-driven-future/">pairing the launch with a public announcement</a> at the Re:publica 2014 conference in Berlin. The spoof site included products such as Google Trust (data “insurance”), Google Bee (personal drones), Google Hug (location-based crowdsourced hug matching) and Google Bye (an online profile for the afterlife). The goal: raise awareness about Google's privacy policies, which Peng! believes are hypocritical. The spoof was great success, prompting a wave of commentary and coverage that recognized it for the satire that it was.</p>
<p><img class="align-right" src="/files/2014/05/20/googlenest_0.png" alt="" height="158" width="298" /></p>
<p>Unfortunately, Google's skin was not thick enough to withstand this relatively gently ribbing. The company wrote a polite note to the collective, expressing their sincere respect for political commentary—but nonetheless demanding that Peng! revise the site and assign the domain name to Google. Note to Google: polite trademark bullying is still bullying. </p>
<p><a href="https://www.eff.org/files/2014/05/20/google-nest.org_correspondence_from_c._mcsherry_copy.pdf">EFF responded to Google</a> on Peng's behalf, explaining what should be obvious: the site was pure noncommercial political commentary. Trademark owners should not and cannot punish activists simply because they happen to use trademarks in the course of that kind of commentary.</p>
<p>As it happens, having made its initial point, Peng! has in fact chosen to revise the site to document Google's unfortunate response. But Peng! has refused to transfer the domain name. So the ball is back in Google's court and the company must choose whether or not to do the right thing.</p>
<p>There are plenty of smart trademark lawyers at Google; they should know they blew it this time. Having foolishly started this fight, Google ought to apologize and end it.</p>
</div></div></div>Tue, 20 May 2014 22:07:26 +0000corynne80377 at https://www.eff.orgFair UseNo Downtime for Free SpeechFair Use Triumphs in the Munger Gameshttps://www.eff.org/fr/deeplinks/2014/02/fair-use-triumphs-teh-munger-games
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>In a win for online fair use and the free speech it makes possible, a federal district court judge <a href="http://ia601700.us.archive.org/11/items/gov.uscourts.cand.264838/gov.uscourts.cand.264838.64.0.pdf">has ruled</a> that using a campaign headshot as part of a critical, noncommercial blog post does not infringe copyright.</p>
<p>The case started back in April, when California Republican Party Vice Chairman Harmeet K. Dhillon sued an anonymous blogger over the use of a five year old headshot on "The Munger Games" website—a site dedicated to criticism of Charles Munger Jr., donor and current chairman of the Santa Clara County Republican Party, and his perceived political allies. The headshot was part of a <a href="http://www.mungergames.net/?p=41">post criticizing Dhillon</a> and was originally used as part of her failed campaign for the California Assembly in 2008. Given that the use in question was obviously a lawful fair use, it appeared that the suit was motivated more by a desire to use the judicial process to unmask her critics than by any legitimate copyright concern. </p>
<p>The defendants asked the court to dismiss the case as a matter of law early, before the parties were forced to waste further time and money defending the case. EFF <a href="https://www.eff.org/press/releases/eff-court-dismiss-politically-motivated-copyright-lawsuit">submitted an amicus brief in support</a>, explaining that it is particularly important to call a halt to such cases quickly, lest they be used as a club to punish free speech. While some fair uses cases can be muddy, the right outcome for this one was crystal clear.</p>
<p>Happily, the court <a href="http://ia601700.us.archive.org/11/items/gov.uscourts.cand.264838/gov.uscourts.cand.264838.64.0.pdf">agreed</a>, though it did not use quite the procedure we urged. Running through the traditional fair use factors (purpose, nature of the work, amount used, and likelihood of market harm), the court noted that while the headshot was originally created for use in a campaign, the bloggers had used it as part of their criticism of Dhillon's political views—a "paradigmatic" fair use purpose. The court rejected out of hand as a "speculative assertion" Dhillon's contention that the bloggers might have had some commercial purpose. While the work was minimally creative and the bloggers used the entire work, they had to do so to accomplish their purpose. Finally, the court concluded that the Munger Games use of the shot had no impact on any licensing market for the work. The court properly rejected Dhillon's complaint that she had stopped using the photo herself due to the negative publicity:</p>
<blockquote><p>The plaintiff’s argument that the defendant’s use of the headshot photo in connection with the article commenting on and criticizing her political views has altered the meaning or message of the original work is, in effect, a concession that the defendant’s use was transformative under the first factor of the fair use analysis. The plaintiff’s argument does not, however, establish that the defendant’s use had any impact upon the economic market for the headshot photo . . . . </p></blockquote>
<p>The plaintiff in this case should have known better than to waste the court’s time on such an outrageous claim. We're glad to see that Judge Illston took the wise step of dismissing the case now. But it's disappointing that she did not also choose to punish Dhillon for her misuse of the judicial process by requiring Dhillon to pay attorneys fees. Indeed, the case underscores the need for <a href="https://www.eff.org/deeplinks/2012/08/new-federal-anti-slapp-legislation-introduced-good-start">a strong federal anti-SLAPP law</a>. It is likely no accident that Dhillon countered the criticism of her political views with a (federal) copyright infringement suit. Had she brought a similar state-law claim and lost, California's anti-SLAPP statute would likely have left her on the hook for attorney's fees. As long as federal causes of action are exempt from anti-SLAPP protections, plaintiffs will continue to be drawn to such strategies to carry out their transparently improper goals.</p>
<p>In the meantime, as the 2014 campaign season ramps up, let's hope our politicians take note: the best response to critical speech is still more speech, not bogus copyright claims. </p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/dhillon-v-doe">Dhillon v. Doe</a></div></div></div>Wed, 26 Feb 2014 17:04:42 +0000corynne79049 at https://www.eff.orgFair UseNo Downtime for Free SpeechNew Entrants in the Takedown Hall of Shame: AIDS Deniers and Televangelists (Updated)https://www.eff.org/fr/deeplinks/2014/02/new-entrants-takedown-hall-shame-aids-deniers-and-televangelists
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Another day, another stupid copyright claim silences a lawful use online. Copyright abuse is all too common, but some forms deserve special attention and a place in <a href="https://www.eff.org/takedowns">EFF Takedown Hall of Shame</a>. </p>
<p>First up: <a href="https://www.eff.org/takedowns/aids-denialists-target-debunking-documentary">a particularly offensive use of the DMCA</a> to force offline a series of videos debunking AIDS denialists. It seems there’s a community of people trying to convince the world that the medical science behind, and treatment for, HIV/AIDS is all wrong. What is worse, they are trying to convince HIV positive people not to take life-saving medications. One of their principal propaganda tools is the movie “House of Numbers” in which a young Canadian named Brent Leung purports to investigate the science behind AIDS. Video blogger Myles Power (not his real name) <a href="http://www.youtube.com/user/powerm1985">created a series of videos of his own</a>, debunking the “facts” and testimony discussed in House of Numbers. Movie backers Knowledge Matters LLC and Martin Penny promptly filed several DMCA notices targeting the videos, because Powers included clips from the movie <i>in order to critique it.</i> Powers could, of course, counter-notice, but understandably hesitated to do so, fearful of retaliation. With EFF’s help, Power has now challenged the takedowns—but they should never have happened in the first place. </p>
<p>The AIDS denialist’s tactics echo those of our second inductee, former Navy chaplain and Colorado Assembly candidate Gordon Klingenschmitt. Just before Christmas, Klingenschmitt launched <a href="https://www.eff.org/takedowns/attempt-silence-political-speech-right-wing-watch">a campaign to use the DMCA</a> to shut down the YouTube account of People for the American Way's <a href="http://www.rightwingwatch.org">Right Wing Watch</a> (“RWW”) project. RWW reports and comments on the political views of folks like Klingenschmitt, using their own words. Klingenschmitt sent a series of takedown notices claiming that RWW's use of clips of his program infringed his copyrights—never mind that RWW was obviously posting them as part of its critical work. Because YouTube has a policy of shutting down accounts after three takedown notices, Klingenschmitt’s bogus complaints caused RWW’s entire account to be taken offline—twice. The harassment finally stopped only when PFAW, also with EFF's help, <a href="https://www.eff.org/deeplinks/2013/12/no-more-downtime-free-speech-eff-helps-people-american-way-challenge-dmca-abuser">threatened to take Klingenschmitt to court.</a></p>
<p>As we have noted before, the “three strikes and you’re out” approach to DMCA notices taken by YouTube and other service providers is ripe for this kind of abuse. YouTube has made some improvements, but <a href="https://www.eff.org/deeplinks/2011/01/dmca-copyright-policies-staying-safe-harbors-while">there’s much more service providers could do.</a><a href="https://www.eff.org/deeplinks/2013/12/no-more-downtime-free-speech-eff-helps-people-american-way-challenge-dmca-abuser"> </a></p>
<p>In the meantime, there’s a lot of talk these days about copyright reform. Know what really needs fixing? The legal and technological practices that are blurring the line between copyright and censorship. </p>
<p><strong>Update:</strong> Myles Powers' videos are back up ahead of the usual counternotice two-week timeline, thanks to intervention from YouTube. Well done YouTube, it's great to see you intervene to protect fair use!</p>
</div></div></div>Tue, 18 Feb 2014 16:59:17 +0000corynne78928 at https://www.eff.orgFair UseDMCANo Downtime for Free SpeechFree SpeechGetting Copyright Right for the 21st Centuryhttps://www.eff.org/fr/deeplinks/2014/01/getting-copyright-right-21st-century
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p><a href="https://www.eff.org/copyrightweek"><img class="align-right" src="https://www.eff.org/files/2014/01/12/copyright-square-1.png" height="191" width="191" /></a><i>In the week leading up the two-year anniversary of the SOPA blackout protests, EFF and others are talking about key principles that should guide copyright policy. Every day, we'll take on a different piece, exploring what’s at stake and what we need to do to make sure the law promotes creativity and innovation. We've put together <a href="https://www.eff.org/copyrightweek">a page where you can read and endorse the principles yourself</a>. Let's send a message to DC, Hollywood, Silicon Valley, Brussels, and wherever else folks are making new copyright rules: We're from the Internet, and we're here to help.</i></p>
<p>Today is Internet Freedom Day, the second anniversary of the Internet Blackout that <a href="https://www.eff.org/deeplinks/2012/01/nternet-spoke-and-finally-congress-listened">derailed</a> the <a href="https://www.eff.org/issues/coica-internet-censorship-and-copyright-bill">SOPA/PIPA</a> train. It’s also the culmination of Copyright Week, a week devoted to thinking out loud about how to get copyright right. At EFF, we’ve been tremendously impressed by the criticism and commentary we’ve seen this week about copyrights, copywrongs, the user rights that are still under threat, and how we can best protect them. It’s collected <a href="https://www.eff.org/copyrightweek">here</a>.</p>
<p>The upshot: The Internet Blackout helped win a crucial battle. Now it’s time to start winning the war. Fortunately, history, technology, and common sense are on our side.</p>
<p>Step one is to make clear that we are not standing down. In the wake of the Internet Blackout, copyright maximalists did their level best to characterize the millions of Internet users who took part as misled and misinformed, more concerned about free stuff than a free Internet, perfectly happy to do whatever Google tells them to do.</p>
<p><a href="https://www.eff.org/deeplinks/2012/02/what-riaa-wont-tell-you-users-matter">We know what really happened</a>. We know that the Blackout <a href="http://www.nytimes.com/2012/01/19/technology/web-protests-piracy-bill-and-2-key-senators-change-course.html?hp&amp;_r=0">expressed the unwavering opposition</a> of a broad coalition of public interest groups, technologists, academics, technology companies (big and small), archivists, authors, artists, musicians, bloggers, and just plain concerned citizens, all of whom correctly saw a grave danger to the future of the Internet. Together, we reminded the U.S. Congress who it works for. We sent an <a href="https://www.eff.org/deeplinks/2012/01/thank-you-internet-and-fight-continues">unmistakable message</a> that laws affecting all of us <a href="https://www.eff.org/deeplinks/2012/01/no-more-back-room-deals-users-must-have-voice-sopa">can't be made in a backroom</a> by insiders bearing campaign cash, whether those insiders represent Hollywood or Silicon Valley. We not only took back the democratic process, we dragged it into the 21st century. <a href="https://www.eff.org/deeplinks/2013/07/real-copyright-reform-starts-listening-users-not-just-usual-suspects">And we’re not going away</a>. </p>
<p>Step two is to be very clear about what we’re fighting for. For most of us, the goal is not to eliminate copyright altogether or make enforcement impossible, or whatever other cliché the maximalists want to pin on us. The goal is to reintroduce a sense of balance, fairness and rationality, so that copyright can once again serve its purpose under the U.S. Constitution: to promote creativity and innovation. </p>
<p>Insane <a href="http://www.techdirt.com/articles/20140114/10565225874/copyright-week-our-lost-culture-what-we-lose-having-killed-public-domain.shtml">copyright terms</a>; excessive and unpredictable <a href="https://www.eff.org/deeplinks/2014/01/safeguard-public-domain-and-public-interest-fix-copyrights-crazy-penalties">penalties</a>; laws that <a href="https://www.eff.org/deeplinks/2014/01/you-bought-it-you-own-it-time-reclaim-right-usetinkerrepairmakeselllend-your-stuff">punish people for hacking the DRM on their devices in order to repair them, make them work better and fix security flaws—or even talk about it in public</a>; lawsuits that try to <a href="https://www.eff.org/deeplinks/2014/01/celebrating-fair-use-copyright-week">stifle new and useful products that enable fair uses</a>; government seizures of <a href="https://www.eff.org/deeplinks/2012/05/unsealed-court-records-confirm-riaa-delays-were-behind-year-long-seizure-hip-hop">blogs that mistakenly include a few infringing links</a>; proposals to <a href="https://www.eff.org/deeplinks/2012/01/how-pipa-and-sopa-violate-white-house-principles-supporting-free-speech">force intermediaries to police (and therefore monitor) user-generated content</a>—none of these things serve copyright’s purpose. Here’s what does: sane limits and thoughtful enforcement policies, <a href="https://www.eff.org/deeplinks/2014/01/transparency-fundamental-good-copyright-policy">developed through a transparent and democratic process</a>, based on <a href="http://www.wired.com/threatlevel/2010/04/fairuse-economy/">real evidence</a> of costs and benefits. Policies that take it as a given that a free and open Internet is essential to copyright’s purpose and must not be sacrificed at the altar of copyright enforcement. If that strikes you as radical, with all due respect <a href="https://www.eff.org/deeplinks/2012/02/dear-hollywood-open-letter-hardworking-men-and-women-entertainment-industries">maybe you are the one who is misled and misinformed</a>. Let's talk.</p>
<p>For the rest of us, consider this a call to arms: it’s time to take back copyright. Want to know what you can do right now? Visit the <a href="https://www.eff.org/copyrightweek">Copyright Week website</a> for a collection of actions you can take on a variety of issues, and information about why you should. Endorse the Copyright Principles. And stay tuned: we’re just getting started.</p>
</div></div></div>Sat, 18 Jan 2014 18:40:24 +0000corynne78478 at https://www.eff.orgDefend Your Right to Repair!DMCANo Downtime for Free SpeechSOPA/PIPA: Internet Blacklist LegislationTerms Of (Ab)UseFree SpeechCreativity & InnovationDRMOpen AccessTrans-Pacific Partnership AgreementDigital BooksSearch EnginesTransparencyNo More Downtime for Free Speech: EFF Helps People for the American Way Challenge DMCA Abuserhttps://www.eff.org/fr/deeplinks/2013/12/no-more-downtime-free-speech-eff-helps-people-american-way-challenge-dmca-abuser
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>For several weeks now, former Navy chaplain and Colorado Assembly candidate Gordon Klingenschmitt has been on a <a href="//www.popehat.com/2013/11/21/frothing-nutjob-gordon-klingenschmitt-his-censorship-is-my-censorship-too">campaign</a> to shut down the YouTube account of People for the American Way's <a href="http://www.rightwingwatch.org">Right Wing Watch</a> (“RWW”) project. RWW reports and comments on the political views of folks like Klingenschmitt, using their own words. As we all learned in Writing 101: show, don’t tell.</p>
<p>Klingenschmitt apparently doesn’t appreciate the criticism those clips engender, so he’s been using false copyright claims to get them taken down. Now, with help from EFF and Hogan Lovells, PFAW is fighting back, <a href="https://www.eff.org/files/2013/12/08/eff.hl_.lttkling.pdf">demanding</a> that Klingenschmitt end his campaign.</p>
<p>Some background: RWW’s YouTube account has over 2,000 video clips, from a variety of sources, cataloguing statements by right-wing political and religious figures. These video clips are used by RWW in its blog, and also by journalists and other opinion makers, in order to expose what RWW sees as extremist rhetoric. Among those clips are several dozen excerpted from Klingenschmitt’s show, also hosted on YouTube, called Pray in Jesus’ Name.</p>
<p>In response, Klingenschmitt’s filed a series of Digital Millennium Copyright Act (“DMCA”) takedown notices with YouTube targeting those clips. Because YouTube has a policy of shutting down accounts after three takedown notices, Klingenschmitt’s bogus complaints caused RWW’s entire account to be taken offline - twice.</p>
<p>Why bogus? Because the videos are clearly protected fair uses. The clips are noncommercial and transformative. The clips are placed in a distinct news and editorial context, for entirely different purposes from those motivating the original work. As such, RWW’s work is precisely the type of use the fair use doctrine was designed to protect. RWW uses only short clips, no more than necessary for the purpose of facilitating public commentary. And, the clips do not harm any market for Klingenschmitt’s works. Finally, the RWW blog and YouTube channel serve the public interest by advancing political criticism and debate.</p>
<p>It appears that Klingenschmitt does not care much about legal niceties like fair use. He’s publicly bragged about the campaign, and made it abundantly clear that his goal is not legal but political. RWW has challenged every takedown notice, using YouTube’s counter-notification process, and Klingenschmitt has never taken the next step of actually backing up his bogus claim by filing a lawsuit against PFAW (which he has to do to keep the videos down after a counter-notice). Instead, he just sends more notices. </p>
<p>As we have noted before, the “three strikes and you’re out” approach to DMCA notices taken by YouTube and other service providers is ripe for this kind of abuse. YouTube has made some improvements, but <a href="https://www.eff.org/deeplinks/2011/01/dmca-copyright-policies-staying-safe-harbors-while">there’s much more service providers could do</a>. (PFAW has a petition to YouYUbe asking them to change their policies; you can support it <a href="http://site.pfaw.org/site/PageServer?pagename=RWWYouTubeTakeDown&amp;autologin=true">here</a>).</p>
<p>In the meantime, however, Klingenschmitt is now on notice: RWW’s clips are lawful fair uses, and it’s time to stop claiming otherwise. Klingenschmitt has plenty of tools for challenging RWW’s reporting and commentary, beginning with his own show. After all, the best answer to speech you don’t like is more speech. But he needs to take the DMCA out of his toolkit, now.</p>
</div></div></div>Sun, 08 Dec 2013 22:49:40 +0000corynne77902 at https://www.eff.orgFree SpeechNo Downtime for Free SpeechFair UseDMCAWordPress.com Stands Up For Its Users, Goes to Court to Challenge DMCA Abusehttps://www.eff.org/fr/deeplinks/2013/11/wordpresscom-stands-its-users-goes-court-challenge-dmca-abuse
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The abuse of the Digital Millennium Copyright Act's notice-and-takedown process to silence lawful speech is <a href="https://www.eff.org/takedowns">well-documented</a> and all too common. Far less common, though, is a service provider that is willing to team up with its users to challenge that abuse in court.</p>
<p>That’s what WordPress.com's parent company, Automattic, Inc, did today and we couldn’t be more pleased. Represented by Durie Tangri, LLP, Automattic has joined <a href="http://en.blog.files.wordpress.com/2013/11/2013-11-21-final-hotham-complaint.pdf">two</a> <a href="http://en.blog.files.wordpress.com/2013/11/2013-11-21-final-retraction-watch-complaint.pdf">lawsuits</a> in federal court under Section 512(f) of the DMCA. Section 512(f) is the provision that allows users to hold people accountable when they make false infringement accusations. </p>
<p>The suits respond to two particularly egregious examples of DMCA abuse. The first involved Ivan Oransky and Adam Marcus. Their website, <a href="http://retractionwatch.wordpress.com/">Retraction Watch</a>, provides a window into the scientific process by documenting the retraction of scientific papers due to everything from honest error to falsified data. A disgruntled researcher allegedly copied portions of the Retraction Watch site onto his own site, claiming the work as his own, and then <a href="http://www.geekosystem.com/retraction-watch-dmca/">issuing a DMCA takedown notice</a> against Retraction Watch. </p>
<p>The second concerns <a href="http://oliverhotham.wordpress.com/2013/08/11/the-sordid-tale-of-how-i-was-censored-by-straight-pride-uk/">Oliver Hotham</a>, a student journalist living in the UK. An anti-gay-rights group called Straight Pride UK was incensed when Hotham had the nerve to publish of a press statement they themselves had sent him. So Straight Pride sent a DMCA notice claiming copyright infringement and, per its policy, WordPress.com took the post down. Hotham was outraged and frustrated because he did not feel he could fight back. But now he’s got some new allies.</p>
<p>Both of these cases highlight a fundamental problem with the DMCA: it creates a world where allegations of infringement are a fast track to censorship, usually with few real consequences for anyone but the user. By standing with its users in these cases, Automattic is doing its part to help fix that problem.</p>
<p>From the WordPress <a href="http://en.blog.wordpress.com/2013/11/21/striking-back-against-censorship/">blog</a>:</p>
<blockquote><p>Until there are some teeth to the copyright laws, it’s up to us - websites and users, together - to stand up to DMCA fraud and protect freedom of expression. Through these suits, we’d like to remind our users that we’re doing all we can to combat DMCA abuse on WordPress.com….and most importantly, remind copyright abusers to think twice before submitting fraudulent takedown notices. We’ll be watching, and are ready to fight back.</p></blockquote>
<p>As long-term veterans of the DMCA wars, we know these legal fights aren’t always easy, and that many users fear to stand up and defend themselves against false, even harassing, infringement allegations. It’s a big help when your service provider stands with you. Well done, Retraction Watch, Oliver Hotham, and Automattic.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/lenz-v-universal">Lenz v. Universal</a></div><div class="field__item odd"><a href="/fr/cases/lawrence-lessig-v-liberation-music">Lawrence Lessig v. Liberation Music</a></div></div></div>Thu, 21 Nov 2013 17:28:00 +0000corynne77637 at https://www.eff.orgNo Downtime for Free SpeechFair UseDMCAPuzzling Ruling in Massachusetts Fair Use Casehttps://www.eff.org/fr/deeplinks/2013/09/puzzling-ruling-massachusetts-fair-use-case
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>When a statute is clear, judges are supposed to follow it or explain, in some detail, why they shouldn’t. That’s why we were disappointed by this week's <a href="https://www.eff.org/files/tuteur_order.pdf">ruling</a> in <i>Tuteur v. Crosley Corcoran</i>. In the ruling, the judge suggests that the Digital Millennium Copyright Act (“DMCA”) does not require the sender of a takedown notice to affirm anything except its belief that the targeted material is being used without permission from the owner or its agent. Trouble is, the statute<a href="http://www.law.cornell.edu/uscode/text/17/512"> says something very different</a>, i.e., that the sender must affirm that the material is not authorized by “the copyright owner, its agent, <i>or the law.</i>” </p>
<p></p>
<p>As we explained in an <a href="https://www.eff.org/files/eff_and_dmlp_tuteur_brief.pdf">amicus brief we filed</a> in the case, those three words matter because they require that the sender of a takedown notice do more than simply check its records to see whether a given use has been authorized by the owner. As <a href="http://scholar.google.com/scholar_case?case=2841478048890198305">numerous</a> <a href="http://scholar.google.com/scholar_case?case=13285811131233683316">courts</a> have <a href="http://scholar.google.com/scholar_case?case=2209471029398314909">recognized</a>, the sender has to take the extra step of<a href="https://www.eff.org/deeplinks/2008/08/judge-rules-content-owners-must-consider-fair-use-"> considering whether a given use is authorized by law</a>, such as whether it is a fair use. Without that requirement, copyright owners have little reason to avoid taking down obvious fair uses, like a 29-second clip of a dancing baby, a remix <a href="https://www.eff.org/deeplinks/2013/01/copyright-vampires-attempt-suck-lifeblood-out-fair-use-video">video comparing Twilight and Buffy the Vampire Slayer</a>, or an <a href="https://www.eff.org/press/releases/lawrence-lessig-strikes-back-against-bogus-copyright-takedown">hour-long lecture on remix culture </a>by an internationally renowned law professor. </p>
<p></p>
<p>Admittedly, the facts of this particular case are messy. The dispute began as an online battle between two bloggers—doula Gina Crosley-Corcoran and OB/GYN Dr. Amy Tuteur—about the safety of home birth. After an exchange of critical posts, Crosley-Corcoran posted a photo of herself making a well-known, finger-related gesture to Tuteur and writing: “I don’t want to leave you without something you can take back to your blog and obsess over, so here’s a picture of me.” Tuteur responded with a post of her own that included the photo with some commentary of her own—a clear case of fair use though not, perhaps, a particularly savory one.</p>
<p></p>
<p>Crosley-Corcoran then sent a DMCA takedown notice to the host of Tuteur’s blog, alleging copyright infringement of the finger photo. After Tuteur changed hosts, Crosley-Corcoran sent another takedown notice to the new host. According to Tuteur, this second notice was sent after Crosley-Corcoran’s attorney admitted that there was no valid copyright claim. And on her blog, Crosley-Corcoran wrote that she would be prepared to settle the matter if Tuteur would “agree to stop personally attacking me.” As others have also concluded, the chain of events suggests that Crosley-Corcoran was using the DMCA to silence a critic. Accordingly, Tuteur filed a claim under Section 512(f) of the DMCA, which is designed to hold copyirght owners accountable for misrepresentations made in DMCA takedown notices.</p>
<p></p>
<p>The first issue before the court was whether the Plaintiff had sued in the right court. The court initially avoided that issue and called for briefing on whether a 512(f) claim can be based on a fair use. Having decided to reach this issue prematurely, the court recognized early in the decision that Section 512 does require a copyright owner to form a good fair belief as to whether a given use is authorized by law. So we were surprised to find that, just few pages later, the court also stated that Section 512 only requires a copyright owner to affirm that the material is being used without permission. That latter suggestion is impossible to reconcile with either the statute or the weight of judicial authority. </p>
<p></p>
<p>The court also appears to have been influenced by a misreading of the briefing. The court suggests that Tuteur and her supporting amici had insisted that copyright owners have to do an intensive investigation of all possible affirmative defenses before sending a takedown notice. Our actual argument was simpler: that the DMCA was not intended to set up a permissions culture, where any speech may be taken offline if the speaker is using unlicensed material. In other words, Section 512 was not intended to trump the fair use doctrine. </p>
<p></p>
<p>Perhaps the most dangerous aspect of the decision was its implicit approval of the notion that fair use need not be considered as part of the takedown process because it is an affirmative defense. In other words, as a matter of procedure in an actual lawsuit, it must be proven by an accused infringer <i>after</i> it has been established that the copying was otherwise unlawful. But of course the whole point of the DMCA process is to sidestep an actual lawsuit; it seems odd, at best, to selectively import the federal rules of civil procedure into a process that is designed precisely to avoid them. What is more, if the DMCA did not require copyright owners to consider fair use prior to sending a takedown at all, Section 512 is an open invitation to private censorship. For example, an author could send a takedown notice to remove a critical book review based on just a few quoted sentences. After all, that's a fair use, albeit one no sane person would bother to challenge in a court of law. </p>
<p></p>
<p>Fortunately, the court does at least recognize that Section 512(f) is intended prevent abuse the DMCA takedown process. It remains to be seen what, in this judge's view, qualifies as abuse. We'll continue to watch the case closely.</p>
</div></div></div>Thu, 12 Sep 2013 08:45:34 +0000corynne75671 at https://www.eff.orgNo Downtime for Free SpeechFair UseDMCASpeculation Trumps Academic Freedom: UK Court Censors Security Researchers for Reverse Engineering Publicly Available Softwarehttps://www.eff.org/fr/deeplinks/2013/08/speculation-trumps-academic-freedom-uk-court-censors-security-researchers-reverse
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Next week, one of the most respected security research conferences in the world, the <a href="https://www.usenix.org/conference/usenixsecurity13">USENIX Security Symposium</a>, will be held in Washington D.C. Thanks to a <a href="http://www.bailii.org/ew/cases/EWHC/Ch/2013/1832.html">gag order </a>from a British court, however, it won't go quite as planned. The order forbids the authors of a paper describing fundamental flaws in car lock systems from discussing key aspects of the work, based on nothing more than speculation about a <em>third party's</em> alleged “misuse of confidential information.” </p>
<p></p>
<p>We’ve taken a closer look at the court’s ruling and it’s a doozy. According to the court, the researchers (1) reverse engineered a software program called Tango Programmer that’s been sold online since 2009; (2) in the process, identified an algorithm used in a popular car unlocking system; (3) identified fundamental security flaws in that algorithm; and (4) disclosed those flaws to the vendor of the system nine months before the conference. One month before the deadline for final submission to the conference, Volkswagen, who uses the software, ran to court to stop it. </p>
<p></p>
<p>The researchers acted responsibly and methodically. They used the time-honored technique of reverse engineering publicly available software and disclosed in plenty of time to address the issue. So, why can’t they advise car owners of the problem to that they can protect themselves? </p>
<p></p>
<p>Because, according to the court, Tango Programmer was of "clearly murky origin.” While the software had been available online for years without any apparent problem, in the court's view, the researchers had an affirmative obligation to establish that the software did not contain stolen confidential business information. </p>
<p></p>
<p>It is all too clear that the court’s opinion is clouded by its view that the researchers – respected scholars at major universities – are <a href="https://www.eff.org/deeplinks/2013/07/manning-verdict-and-hacker-madness-prosecution-strategy">irresponsible hackers</a>:</p>
<blockquote><p>The claimants do not have an overwhelming case on the merits, not even a very strong one, but the Tango Programmer has a clearly murky origin, and that is obvious to the defendants… In my judgment, the defendants have taken a reckless attitude to the probity of the source of the information they wish to publish.</p>
</blockquote>
<p>To be clear, there’s no evidence in the record as to how Tango Programmer was developed, and the researchers stated that they assumed it was developed based on perfectly lawful technique, chip splicing. The court dismissed that statement out of hand, and looked instead to the website on which the program was sold. Based on language on the site, the court concluded that the sellers of Tango Programmer knew the software “is likely to facilitate crime.” And, the researchers themselves observed that Tango Programmer offers “functionality that goes beyond 'legitimate' usage.” </p>
<p></p>
<p>As an initial matter, this is looking at security research presentations through the wrong lens. Research on programs that could be misused enhances security by exposing the flaws and encouraging fixes. Computer security would be a farce if it avoided all "murky" software.</p>
<p></p>
<p>But even accepting the court's framing, the possibility of <em>misuse</em> says nothing about whether the program was <i>developed </i>using stolen confidential information, much less whether the researchers acted recklessly in using the program for their legitimate purposes.</p>
<p></p>
<p>The court pays a fair amount of lip service to academic freedom, but it’s just that: lip service. Even though it concedes that the case against the researchers is “not very strong,” even though there are many easier ways of stealing cars than the exploit that would be disclosed, even though Tango Programmer could have been developed without relying on stolen information, and even though car owners might be better off knowing about the flaws in the security systems on which they rely, the court nonetheless concludes that academic freedom has to give way to “the security of millions” of cars. </p>
<p></p>
<p>Again, the court gets it exactly backwards. The security of millions of cars depends on robust research into their flaws, and presentions of vulnerabilities and exploits at academic conferences ultimately enhance security. Security through obscurity is widely and correctly rejected by the security community, and security through willful ignoring a publicly available program is even worse.</p>
<p></p>
<p>Taken as a whole, the ruling sends a terrible message to researchers: if the flaws you expose are sufficiently consequential, you can be censored based on nothing more than sheer speculation about the activities of third parties. The irony, of course, is that these researchers have been punished precisely because they acted responsibly and disclosed their research well in advance of publication. Indeed, the whole situation could have been avoided if the vendor had done its part and addressed the flaw in the first place. </p>
<p></p>
<p>This ruling was issued by a U.K. court. If the case had been brought in the U.S., things might have been quite different. Under U.S. law, the person who wishes to publish doesn’t have the burden of proving there was no misappropriation just because the information is of "'murky' origin." More broadly, a U.S. court would not issue preliminary injunction where the claimants case was "not even . . . very strong" -- quite the contrary. U.S. law has been <a href="https://www.eff.org/deeplinks/2008/08/mit-students-still-gagged-federal-court">used to thwart</a> the <a href="http://w2.eff.org/IP/DMCA/Felten_v_RIAA/">publication of security research</a> in a number of ways, but a bogus trade secret claim is the weakest tool in the kit. </p>
<p></p>
<p>EFF senior staff attorney Kurt Opsahl will be participating in a <a href="https://www.usenix.org/conference/hotsec13/balancing-academic-freedom-and-responsibility-security-research">USENIX-sponsored workshop on academic freedom</a> on the eve of the Security Symposium. We hope the workshop will provide a much-needed opportunity for USENIX community members to share their perspective on this censorship, and consider ways to take action. </p>
</div></div></div>Tue, 06 Aug 2013 22:55:02 +0000corynne75291 at https://www.eff.orgFree SpeechNo Downtime for Free SpeechCoders' Rights ProjectChurch of Scientology Lands in Takedown Hall of Shamehttps://www.eff.org/fr/deeplinks/2013/06/church-scientology-lands-takedown-hall-shame
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The Church of Scientology International (“CSI”) has often been accused of <a href="http://news.cnet.com/2100-1023-865936.html">pulling out all the stops</a> <a href="https://www.eff.org/deeplinks/2008/09/massive-takedown-anti-scientology-videos-youtube">to suppress</a> <a href="http://news.yahoo.com/blogs/lookout/church-scientology-asks-followers-censor-comments-160104800.html">speech critical of the organization</a>. Surprisingly, however, they have not yet made it into the <a href="https://www.eff.org/takedowns">EFF Takedown Hall of Shame</a>.</p>
<p><a href="https://www.eff.org/takedowns/religious-group-shows-little-tolerance-parody"><img class="align-right" src="https://www.eff.org/files/images_insert/cheerupwillsmith.png" alt="" height="254" width="300" />Until now</a>. Last week, CSI demanded that GoDaddy take down a website, cheerupwillsmith.com, that used parody and satire to tweak CSI, its alleged relationship to actor Will Smith, and its reportedly aggressive control over the activities of its members. The site included a letter, purportedly from Scientology leader David Miscavige, ordering CSI members to see After Earth, a new movie starring Will Smith that hasn’t done well at the box office, at least three times. The site also demanded that CSI members make videos supporting Smith.</p>
<p>Pointing to the presence of CSI logos and a photograph of Mr. Miscavige on the site, CSI told GoDaddy the site violated CSI’s copyright and trademark rights, and asked the company to take it down. GoDaddy promptly complied. CSI also claimed that the creators of the site had violated California Penal Code section 528.5, which forbids the credible impersonation of a human person online. Section 528.5 was intended to be used to combat cyberbullying; <a href="https://www.eff.org/deeplinks/2010/08/e-personation-bill-could-be-used-punish-online">as we anticipated</a>, however, it’s now being used to target political speech.</p>
<p>As we explained in a <a href="https://www.eff.org/files/lettertosoter.pdf">letter to CSI</a>, however, none of these claims holds water. With respect to the copyright allegations, the noncommercial site was obviously designed for purposes of criticism and comment. It used no more than was necessary for its purpose, and caused no conceivable harm to any market for CSI works. In other words, it's precisely the kind of speech the <a href="https://www.eff.org/issues/bloggers/legal/liability/IP">fair use doctrine</a> is intended to protect.</p>
<p>The trademark allegations are equally silly. The website simply uses parody and satire to comment on CSI, its reputation for controlling its members, and its alleged relationship to Will Smith, star of the film “After Earth.” That kind of speech is protected by a variety of legal doctrines, not to mention the First Amendment.</p>
<p><a href="https://www.eff.org/deeplinks/2011/05/utah-court-strikes-blow-free-speech-dismisses">As one federal court put it</a>, trademark law “regulates only economic, not ideological or political, competition . . . ‘Competition in the marketplace of ideas’ is precisely what the First Amendment is designed to protect.”</p>
<p>Finally, the claim that the site violated the California Penal Code is equally absurd. Section 528.5 applies only to “credible” impersonations. No viewer would think the site offered a credible impersonation of Mr. Miscavige—but perhaps CSI knows something we don’t?</p>
<p>Given the outrageousness of CSI complaint, it’s shocking that GoDaddy would respond without hesitation. Activists of all kinds should take heed and look for service providers with backbone. In the meantime, congratulations to CSI: you made it to the Hall of Shame at last.</p>
</div></div></div>Mon, 17 Jun 2013 17:55:33 +0000parker74575 at https://www.eff.orgFree SpeechNo Downtime for Free SpeechFair UseChamber of Commerce Cries Uncle, Abandons Spurious Trademark Lawsuit Against the Yes Menhttps://www.eff.org/fr/node/74523
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The <a href="http://www.uschamber.com">United States Chamber of Commerce</a> has come to its senses at last and withdrawn its lawsuit against political activists <a href="http://theyesmen.org">the Yes Men</a>. In the lawsuit, the Chamber had claimed that a 2009 press conference—in which a Yes Man posing as a Chamber of Commerce spokesperson announced the Chamber was reversing its long held position and endorsing climate change legislation—infringed the Chamber's trademark rights. Before the press conference was even completed, a Chamber of Commerce representative rushed into the room and announced that the Chamber's position on climate change legislation had not in fact changed. The result: widespread media coverage of the event and the Chamber's humorless response. The Yes Men <a href="http://vimeo.com/52088113">tell the story best</a>.</p>
<div class="pullquote-right">
<p>Did the Chamber of Commerce finally get a sense of humor? Or did it just realize the lawsuit was doomed?</p>
</div>
<p>At that point, things took a dangerous turn. Rather than letting matters lie, the Chamber pulled out all the stops to try to punish the activists. First, it sent an improper copyright takedown notice to the Yes Men's upstream provider demanding that a parody website posted in support of the action be removed immediately and resulting in the temporary shutdown of not only the spoof site but hundreds of other sites hosted by the Yes Men's web host. Next, the Chamber filed suit against the activists in federal court.</p>
<p>With help from EFF and <a href="http://www.dwt.com">Davis Wright Tremaine LLP</a>, the Yes Men fought back, moving to dismiss the claims on First Amendment grounds. As we explained, you can’t use trademark law to punish free speech just because the speaker happens to use your trademarks as a necessary part of its activism.</p>
<p>Did the Chamber of Commerce finally get a sense of humor? Or did they just realize their lawsuit was doomed? Either way, it’s a long-overdue victory for the Yes Men and their increasingly popular brand of political parody and satire.</p>
<p>The Yes Men are holding a new press conference responding to the Chamber’s decision to drop the case. Watch this space for more on their response.</p>
<p><u><strong>UPDATE:</strong></u> There is apparently no such thing as a free lunch for the Yes Men — at least not one from the U.S. Chamber of Commerce. Still, they've posted highlights from <a href="http://yeslab.org/chambercriesuncle">their press conference on the steps of the Chamber</a>, which we've embedded below.</p>
<p></p><center><!-- VIDEO FILTER - INVALID CODEC IN: [video:https://www.youtube.com/watch?v=jew6KiCZ_wQ] --></center>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/chamber-commerce-v-servin">Chamber of Commerce v. Servin</a></div></div></div>Thu, 13 Jun 2013 15:27:53 +0000corynne74523 at https://www.eff.orgFree SpeechNo Downtime for Free SpeechFair UseFree Speech Battle Over Publication of Federal Lawhttps://www.eff.org/fr/press/releases/free-speech-battle-over-publication-federal-law
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Wrongheaded Copyright Claim Blocks Online Posting of Important Technical Standards</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>San Francisco - The Electronic Frontier Foundation (EFF) asked a federal judge today to protect the free speech rights of an online archive of laws and legal standards after a wrongheaded copyright claim forced the removal of a document detailing important technical standards required by the federal government and several states.</p>
<p>EFF and co-counsel David Halperin represent <a href="https://public.resource.org/">Public.Resource.Org</a>, Inc., a non-profit organization that improves the public's access to laws and codes that affect their lives. As part of its work, Public Resource acquires and makes available public safety documents such as fire safety codes, food safety standards, and other regulations that have been incorporated into U.S. and international laws. But last month, the association of Sheet Metal and Air Conditioning Contractors (SMACNA) claimed an online post of a federally-mandated 1985 standard on air-duct leakage violated its copyright and demanded the post be removed. The standards are a crucial element of U.S. federal energy conservation efforts and an integral part of model codes, such as the International Energy Conservation Code. After a threat of legal action from SMACNA, Public Resource took down the document until a court could affirm its right to publish the information.</p>
<p>"The public has a right to meaningful access to the laws that govern their lives," said Carl Malamud, the president and founder of Public Resource. "Technical standards like the ones in this document have the force of law, and people need to know them in order to comply with regulatory obligations, keep the public safe, and avoid costly penalties. The right of citizens to read and speak the law is fundamental to an informed citizenry in the United States and throughout the world. Ignorance of the law is no excuse, which means we have to be able to read the law."</p>
<p>In a petition for declaratory and injunctive relief filed today, EFF and Public Resource asked the court to rule that posting the standards does not infringe any copyright.</p>
<p>"Building codes and other technical specifications touch our lives every day, and Public Resource is helping to make it easier for us to access and understand how they affect us," said EFF Intellectual Property Director Corynne McSherry. "We're asking the judge today to let Public Resource continue its important work in increasing the public's access to the laws and regulations that govern us."</p>
<p>For the full petition:<br /><a href="https://www.eff.org/node/73298">https://www.eff.org/node/73298</a></p>
<p>Contacts:</p>
<p>Carl Malamud<br />
President and Founder<br />
Public Resource<br />
carl@media.org</p>
<p>Corynne McSherry<br />
Intellectual Property Director<br />
Electronic Frontier Foundation<br />
corynne@eff.org</p>
<p>Matt Zimmerman<br />
Senior Staff Attorney<br />
Electronic Frontier Foundation<br />
mattz@eff.org</p>
</div></div></div>Fri, 22 Feb 2013 20:38:01 +0000rebecca73300 at https://www.eff.orgM.C.A. Hogarth on Trademark Bullying and Free Speech https://www.eff.org/fr/node/73204
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p><em>The following is a guest post from <a href="http://mcahogarth.org/">M.C.A. Hogarth</a>—author, space marine enthusiast, and indie business advisor.<br /></em></p>
<p>I'm M.C.A. Hogarth and I'd like to tell you how the EFF helped protect my work and the idea of a "space marine" from a shameless legal bully.</p>
<p>I wrote a web serial called <em>Spots the Space Marine</em> as an homage to Heinlein and the greats of science fiction. Crowdfunding allowed me to launch print and e-book editions that I made available on Amazon... until a trademark threat from Games Workshop over the term "space marine" caused Amazon to remove the ebook from its virtual shelves.</p>
<p>I made an honest effort to find out what it would take to fight the legal battle. Even more than wanting to save <em>Spots the Space Marine</em>, I wanted to save all space marines for the genre I grew up reading. I wanted there to be a world where Heinlein and E.E. Smith's space marines could live alongside mine and everyone else's. No one should have the hubris to think that they can own a fundamental genre trope and deny it to everyone else.</p>
<p>But that legal fight would have cost a lot of money -- money I didn't have. I shared my story, put out a call for support, and the lawyers at EFF answered the call.</p>
<p><em>Spots</em> is now available on Amazon again, and I have the justice-seeking community of the Internet to thank for rallying behind me and the idea that anyone should be free to write a story about space marines or any other common term.</p>
<p><a href="https://supporters.eff.org/donate/spacemarinedl">Please make a donation to EFF to support free speech and justice in intellectual property.</a> I have been overwhelmed by how supportive the community has been and hope that together we can continue to protect indie authors and artists from legal bullying.</p>
<p>With gratitude,<br />
M.C.A. Hogarth</p>
<p>P.S. If you are under some kind of tech-related legal threat, don't hesitate to contact EFF. They are a small non-profit that takes cases when they can and always attempts to connect people to resources that could help.</p>
</div></div></div>Sat, 09 Feb 2013 01:10:06 +0000richard73204 at https://www.eff.orgFree SpeechNo Downtime for Free SpeechFair UseStupid Lawyer Tricks (And How the PTO Could Help Stop Them)https://www.eff.org/fr/deeplinks/2012/10/stupid-lawyer-tricks-and-government-officials-who-are-helping-them
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>We’ve seen some absurd trademark threats in recent years, but this one sets the bar at a new low: The Village Voice is <a href="http://paidcontent.org/2012/10/29/village-voice-sues-yelp-for-using-best-of/">suing</a> Yelp for trademark infringement based on Yelp’s creation of various “Best of” lists. Yes, that's correct, the publisher behind the paper (as well as several other weeklies around the U.S.) has managed to register trademarks in the term “Best of ” in connection with several cities, including San Francisco, Miami, St. Louis and Phoenix. And it now claims that Yelp’s use of those terms infringes those trademarks and deceives consumers.</p>
<p class="MsoNormal">Right.</p>
<p class="MsoNormal">First, a practical question: deceives consumers about what? Trademark law is supposed to ensure that consumers can trust that the goods and services they buy come from the sources they expect, e.g., that the Pepsi you just bought really was manufactured by Pepsi. That helps consumers, because it gives mark-owners an incentive to maintain the expected level of quality. And it helps mark-owners, because they can build customer loyalty and good will. But you don’t need a survey or even a lawyer to figure out that no one actually thinks the Village Voice is associated with Yelp because both publish “best of” lists – not least because no one associates the term “Best of” with <i>any</i> particular news source. </p>
<p class="MsoNormal">Second, the more important question: What is going on at the Patent and Trademark Office? For decades, folks have been complaining (with good reason) that the patent examiners need to do a better job of screening out bogus patent applications. It’s clear that the problem extends to the trademark side as well. The PTO has allowed companies and individuals to register marks in any number of obviously generic and/or descriptive terms, such as “<a href="https://www.eff.org/deeplinks/2011/02/riding-fences-urban-homestead-trademark-complaints">urban homestead</a>” (to refer to urban farms), “<a href="https://www.eff.org/deeplinks/2012/09/trademark-abuse-and-gaymer-community">gaymer</a>” (to refer to gay gamers), and “<a href="https://www.eff.org/deeplinks/2008/04/liberate-b-24-liberator">B-24</a>” (to refer to model B-24 bombers).</p>
<p class="MsoNormal">Once a mark is registered, it is all too easy for the owner to become a trademark bully. And while companies like Yelp have the resources to fight back (as we expect it will), small companies and individuals may not. Just as dangerous, the trademark owner may go upstream, to intermediaries like Facebook who have little incentive to do anything other than take down an account or site that’s accused of infringement. </p>
<p class="MsoNormal">"Good enough for government work" isn't good enough for free speech. It’s time the PTO did its part to stop trademark bullies and tightened up the trademark application process. Fewer bogus registrations means fewer bogus threats, and more online creativity and competition. That's a win for everyone.</p>
</div></div></div>Tue, 30 Oct 2012 20:09:56 +0000corynne72154 at https://www.eff.orgFree SpeechNo Downtime for Free SpeechWith Facebook's "Reporting Guide," A Step in the Right Directionhttps://www.eff.org/fr/deeplinks/2012/06/facebooks-reporting-guide-step-right-direction
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p><b>Crossposted from <a href="http://techpresident.com/news/22478/op-ed-facebooks-reporting-guide-step-right-direction">Techpresident</a></b></p>
<p>We are living in an era where transparency — be it from government, corporations, or individuals — has come to be expected. As such, social media platforms have come under scrutiny in recent years for their policies around content moderation, but perhaps none have received as much criticism as Facebook.</p>
<p>The platform, which boasts 900 million users worldwide, has been the object of ire by <a href="http://www.huffingtonpost.com/2012/02/18/breastfeeding-photos-facebook-respect-the-breast_n_1285264.html">LGBT rights advocates</a>, <a href="http://www.theatlanticwire.com/technology/2011/03/facebooks-middle-east-censorship-problem/36186"></a>Palestinian activists and others for its seemingly arbitrary methods of content moderation. The platform’s <a href="https://www.facebook.com/policies/?ref=pf">policies</a> are fairly clear, but the manner by which its staff chooses to either keep or delete content from the site has long seemed murky — until now.</p>
<p>Recently, Facebook posted an elaborate flow chart dubbed its <a href="http://cdn.theatlantic.com/static/mt/assets/science/FB_Reporting_Guide_1.6-1.jpg">“Reporting Guide,”</a> demonstrating what happens when content is reported by a user. For example, if a Facebook user reports another user’s content as spam, the content is referred (or “escalated”) to Facebook’s Abusive Content Team, whereas harassment is referred to the Hate and Harassment Team. There are also protocols for referring certain content to law enforcement, and for warning a user or deleting his or her account.</p>
<p>Facebook should be commended for lending transparency to a process that has long come under criticism for its seeming arbitrariness. Such transparency is imperative to help users understand when their behavior is genuinely in violation of the site’s policies; for example, several activists have reported receiving warnings after adding too many new “friends” too quickly, a result of a sensitive spam-recognition algorithm. Awareness of that fact could help users modify their behavior so as to avoid account suspension.</p>
<p>Nevertheless, the fact remains that the concept of “community reporting” — on which Facebook heavily relies — is inherently problematic, particularly for high-profile and activist users of a site. Whereas an average user of Facebook might be able to get away with breaking the rules, a high-profile user is not only more likely to be reported (by sheer virtue of his high profile) but may in fact be the target of an intentional campaign to get him banned from the site. Such campaigns have been well-documented; in one instance, a Facebook group was set up for the sole purpose of inciting its members to report Arab atheist groups for violating the site’s policies, a strategy that proved successful in taking at least one such group down. Similar campaigns have been noted in other contexts.</p>
<p>The problem is also apparent when viewed through the context of Facebook’s “real name” rule. Chinese journalist Michael Anti, whose “real” name is Jing Zhao,<br />
found himself banned from the platform in 2011 after being reported for violating the policy. Although Anti has used his English name for more than ten years, including as a <a href="http://www.nytimes.com/roomfordebate/2010/09/29/can-twitter-lead-people-to-the-streets/in-china-weak-ties-are-better-than-nothing-6">writer for the New York Times</a>, he was nonetheless barred from doing so on Facebook. At the time, however, there were a documented 500+ individuals with accounts under the name of “Santa Claus.”</p>
<p>Though these contradictions still exist, it’s clear that Facebook is working to improve both its policies and processes. After all, it was only a short time ago that users violating the site’s terms of service were met with account deletion and a terse message stating that “the decision was final.” Now, users receive warnings, guidance on behavior modification, and an opportunity to appeal — all significant improvements. Facebook also recently joined the <a href="http://globalnetworkinitiative.org/">Global Network Initiative</a> as an observer. This should, hopefully, guide the company toward more transparency and accountability.</p>
<p>As Facebook grows, monopolizing more and more of the social media landscape, its methods of content moderation will become increasingly difficult to scale. The company runs the risk of alienating users from its community, and may want to consider loosening up on some of its policies lest enforcement become untenable.</p>
</div></div></div>Fri, 29 Jun 2012 01:30:39 +0000eva71103 at https://www.eff.orgCommentaryFree SpeechNo Downtime for Free SpeechSocial NetworksTransparencyUnsealed Court Records Confirm that RIAA Delays Were Behind Year-Long Seizure of Hip Hop Music Blog https://www.eff.org/fr/deeplinks/2012/05/unsealed-court-records-confirm-riaa-delays-were-behind-year-long-seizure-hip-hop
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal">After <a href="http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-popular-blog-over-year-deny-all-due-process-hide-all-details.shtml">a year-long seizure</a> and six more months of secrecy, the <a href="https://www.eff.org/cases/matter-seizure-internet-domain-name-dajaz1com">court records</a> were finally released concerning the mysterious government takedown of <a href="http://dajaz1.com/">Dajaz1.com</a> – a popular blog dedicated to hip hop music and culture.<span> </span>The records confirm that one of the key reasons the blog remained censored for so long is that the government obtained three secret extensions of time by claiming that it was <a href="https://www.eff.org/node/70605">waiting for</a> “rights holders” and later, the Recording Industry Association of America, to evaluate a "sampling of allegedly infringing content" obtained from the website and respond to other “outstanding questions.”<span> </span></p>
<p class="MsoNormal">In other words, having goaded the government into an outrageous and very public seizure of the blog, the RIAA members refused to follow up and answer the government’s questions. In turn, the government acted shamefully, not returning the blog or apologizing for its apparent mistake, but instead secretly asking the court to extend the seizure and deny Dajaz1 the right to seek return of its property or otherwise get due process.<span> </span>The government also refused to answer Congressional questions about the case. ICE finally released the domain name in December of 2011, again with no explanation.<span> </span></p>
<p class="MsoNormal">It’s not hard to guess what some of the unanswered “outstanding questions” might have been. Dajaz1.com, was seized with much fanfare by the Immigrations and Customs Enforcement (ICE) division of the Department of Homeland Security over the 2010 Thanksgiving weekend. It was <a href="http://www.nytimes.com/2010/12/20/business/media/20music.html?_r=1">widely reported</a> at the time that Dajaz1 should never have been targeted, that much of the blog’s content was lawful, and that many of the allegedly infringing links were given to the site’s owner by artists and labels themselves – including Kanye West, Diddy, and a vice president of a major record label.<span> </span>So, at a minimum, we imagine the government was asking the RIAA to provide some evidence that the seizure was justified in the first place.<span> </span></p>
<p class="MsoNormal">EFF teamed with the California First Amendment Coalition, represented by Josh Koltun, and our efforts were joined by <a href="http://www.wired.com/threatlevel/">Wired</a>, in seeking the unsealing of the court records.<span> </span>Confronted with the prospect of having to defend the ongoing secrecy in court even after had it returned the domain, the government <a href="https://www.eff.org/node/70611">agreed</a> to allow the records to be unsealed.</p>
<p class="MsoNormal">Now that the full <a href="https://www.eff.org/cases/matter-seizure-internet-domain-name-dajaz1com">court records</a> are out, this seizure raises critical questions about the government’s use of its new powers to shut down lawful speech in the form of domain seizures for alleged copyright infringements. It also demonstrates the basic unfairness of the processes and secrecy invoked here and possibly in hundreds of other domain name seizures across the country.<span> </span>For nearly a year, the government muzzled Dajaz1.com – denying the blog’s author the right to speak and the public’s right to read what was published there – and then compounded matters by claiming extreme secrecy and blocking the Dajaz1 and the public’s access to information about the case.</p>
<p class="MsoNormal">Equally troubling, the records confirm what was already suggested by the initial affidavit used to obtain the seizure order: that ICE, and its attorneys, are effectively acting as the hired gun of the content industry at taxpayers' expense. <span></span>Instead of relying on rightsholders to determine whether a seizure was appropriate, the government should have been conducting its own thorough investigation.<span> </span>If it had acted in anything like good faith, it could have determined that the site wasn't a proper target even before the seizure, or at least could have discovered and rectified the mistake before a year had passed.</p>
<p class="MsoNormal">The whole story is, in a word, appalling.<span> </span>The only silver lining?<span> </span>U.S. taxpayers and their representatives have an object lesson, if one were needed, in why the government should not be <a href="https://www.eff.org/deeplinks/2011/12/blacklist-bills-ripe-abuse-part-ii-expansion-government-powers">granted new IP enforcement powers</a> and why we need to <a href="https://www.eff.org/document/amicus-brief-rojadirecta">reconsider the inclusion of copyright infringement as a basis for civil seizure and forfeiture.</a><span> And</span> in the short term, maybe when Hollywood comes knocking again, ICE will remember that the RIAA isn’t such a reliable crime-fighting partner after all.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/puerto-80-v-us">Puerto 80 v. US</a></div><div class="field__item odd"><a href="/fr/cases/matter-seizure-internet-domain-name-dajaz1com">In the Matter of the Seizure of the Internet Domain Name &quot;DAJAZ1.COM&quot;</a></div></div></div>Thu, 03 May 2012 23:42:29 +0000corynne70615 at https://www.eff.orgAnnouncementLegal AnalysisFree SpeechNo Downtime for Free SpeechFair UseViacom v. Google: A Decision at Last, and It's Mostly Good (for the Internet and Innovation)https://www.eff.org/fr/deeplinks/2012/04/viacom-v-google-decision
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The Internet can breathe a sigh of relief today. In the latest <a href="https://www.eff.org/document/second-circuit-decision-0">twist</a> in the long-running <em><a href="https://www.eff.org/cases/viacom-v-youtube">Viacom v. YouTube</a> </em>litigation, the Second Circuit Court of Appeals revived the entertainment giant’s suit against Google – but simultaneously eviscerated most of the legal theories on which the lawsuit was based. </p>
<p>Here’s the quick and dirty: Back in 2010, a district court <a href="https://www.eff.org/node/58025">threw ou</a>t Viacom’s suit against YouTube, finding that the safe harbors outlined in the Digital Millennium Copyright Act protected YouTube from all copyright liability. Viacom appealed, based on<span class="Apple-style-span"> unprecedented legal theories that, if adopted, would have rendered the DMCA safe harbors a dead letter.</span></p>
<p><span class="Apple-style-span"></span>Today’s decision largely affirms that earlier ruling, finding that YouTube is protected from liability except where the company actually knew of (or was willfully blind to) specific instances of infringement of material at issue in the case, or facts of circumstances indicating such specific infringement. </p>
<p>The appellate court also held that YouTube could be on the hook if it was “willfully blind” to specific infringement – but stressed that YouTube did not have a duty to monitor user activities. In other words, the company can’t have made a deliberate effort to avoid guilty knowledge, but that doesn’t mean it had an affirmative duty to seek out infringing activity. <span>And, in a bit of a technical point, the court said it was unclear whether syndicating clips might be the kind of activity contemplated by the safe harbors, but that it needed more facts as to whether any of the clips at issue were actually syndicated. </span></p>
<p>
Finally, the court also suggested that YouTube might be liable if it had exerted “substantial influence” on the infringing activities of users. The court sent the case back to district court for more fact-finding on the unresolved issues, which means the case will linger on. For now, this leaves a few questions that the district court will have to address (unless the case finally settles). </p>
<p>What’s that all add up to? A loss for YouTube (probably a small one – it is likely that only a small subset of clips remain in play, and YouTube's current practices are not at issue), but, on balance, a win for Internet users and innovation. <span><span> Indeed, w</span>hile some have <a href="http://www.hollywoodreporter.com/thr-esq/viacom-youtube-court-copyright-google-308728#node-308728">declared</a> it a Viacom victory</span><span>, it has to be a pyrrhic one at best given that the decision firmly (and correctly) rejected most of Viacom's litigation agenda -- an agenda that that would have upended the DMCA safe harbors on which so much Internet expression relies.<span> </span></span></p>
<p><span><span></span></span>For example, Viacom had argued that YouTube lost safe harbor protection because it had a general awareness of infringement and, therefore, had the obligation to take “commercially reasonable steps” to police it. That theory, if accepted, would have shifted the burden to police infringement from content owners to service providers – precisely what the safe harbors were intended to forestall. <span>Now that the Second Circuit has joined the <a href="https://www.eff.org/files/DecisionUMGvVeoh.pdf">Ninth Circuit</a> </span><span>in rejecting it, perhaps big content will finally learn its lesson.</span></p>
<p><span>Similarly, Viacom tried to import the common law “vicarious liability” standard into the DMCA by an aggressive reading of a DMCA exception to the safe harbor where the ISP has the right and ability to control infringing activity.<span> </span>On that theory, any service provider who <i>could</i> block access to particular materials could lose the safe harbor protections.</span> As the court recognized, that theory doesn’t make sense: the notice and takedown provisions specifically contemplate such blocking where there is notice of infringement – if Viacom were right, the safe harbors would hardly be “safe.” </p>
<p>What is more, the court rejected Viacom’s claim that YouTube was “willfully blind” to infringement because it failed to monitor for it. Not so, said the court: while the DMCA does not countenance willful blindness, neither does a service provider have a duty to monitor.</p>
<p>Finally, the Second Circuit largely discounted Viacom's theory that YouTube didn't qualify as a service provider under the DMCA because it is more than a storage locker, but actually does a variety of things to facilitate user access to videos, such as generating a list of related videos -- a theory was already rejected by the Ninth Circuit. Congress, the court concluded, did not intend for the statute to be interpreted so narrowly. </p>
<p>So, <span class="Apple-style-span">while YouTube would doubtless have preferred a </span><span class="Apple-style-span">clean affirmance of the decision below, the Internet has much to celebrate </span><span class="Apple-style-span">tonight.<span> </span>The court’s decision adds to </span><span class="Apple-style-span">the growing weight of authority finding the DMCA safe harbors can provide the </span><span>necessary room for innovation.</span> But stay vigilant: big content is doubtless already on the phone to its friends in Congress, demanding a <a href="http://thehill.com/blogs/hillicon-valley/technology/220181-dodd-says-sopa-can-live-again">new SOPA/PIPA</a> that will give it the power to stop the next YouTube before it can get started. </p>
<p>For other views of interest, see <a href="http://www.publicknowledge.org/blog/appeals-court-rejects-viacom-arguments-agains">Public Knowledge</a>, <a href="http://blog.ericgoldman.org/archives/2012/04/second_circuit_3.htm">Prof. Eric Goldman</a> and <a href="http://www.techdirt.com/articles/20120405/08343618389/breaking-appeals-court-sends-viacom-youtube-case-back-to-district-court-future-safe-harbors-still-uncertain.shtml">Mike Masnick</a>.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/viacom-v-youtube">Viacom v. YouTube</a></div></div></div>Thu, 05 Apr 2012 20:37:26 +0000corynne70202 at https://www.eff.orgLegal AnalysisNo Downtime for Free SpeechCreativity & InnovationFair UseDMCASOPA/PIPA: Internet Blacklist LegislationJust the Facts: Lawsuit Against TimeZone Database Deserves Sanctionshttps://www.eff.org/fr/deeplinks/2012/01/just-facts-lawsuit-against-timezone-database-deserves-sanctions
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal">If there were ever a lawsuit that invited sanctions against the people who filed it, <a href="/press/releases/eff-demands-withdrawal-bogus-time-zone-database-lawsuit">this one</a> is it: a case against two database developers by a company that claims a copyright on the time of day. </p>
<p class="MsoNormal">Quick background: last fall, Astrolabe, an astrology software company, <a href="http://www.wired.com/images_blogs/threatlevel/2011/10/astrolabe.pdf">sued</a> Arthur David Olson and Paul Eggert, researchers who have coordinated the development of a database of time zone information for decades.<span> </span>The database is an essential tool used by computers around the world to determine local time so, for example, files and email messages can organized and time-stamped accurately.<span> </span>Astrolabe claimed that Olson and Eggert had infringed its copyright because the database relies, in part on information in an atlas to which Astrolabe owns the rights (the ACS International Atlas).<span> </span> </p>
<p class="MsoNormal">We’ve seen a lot of bogus lawsuits over the years, but this one is a doozy.<span> </span>Facts are not copyrightable, which means the developers were free to use the Atlas as a source. What is more, it appears that Astrolabe <i>knew</i> that the database contained only facts from the Atlas – its Complaint states repeatedly that the database developers copied “information” – i.e., facts. Indeed, the case would be laughable but for the dangerous consequences: Confronted by this legal threat, and lacking the resources to defend himself, Olson promptly <a href="http://www.thedailyparker.com/PermaLink,guid,c5f28bae-4b9c-41ea-b7b7-8891ad63c938.aspx">took the database offline</a>, to the shock and dismay of the many users and developers who relied upon it.</p>
<p class="MsoNormal">But Olson and Eggert soon found they had allies in the fight. EFF signed on to defend them, with assistance from Boston copyright attorneys Adam Kessel and Olivia Nguyen, of Fish &amp; Richardson. And then we waited for Astrolabe to actually serve Olson and Eggert, which would allow litigation to commence in earnest. Perhaps realizing the absurdity of its legal position, however, Astrolabe didn’t bother to take that next step, leaving Olson and Eggert in legal limbo.<span> </span></p>
<p class="MsoNormal">Today, we’re taking the battle to Astrolabe, and starting the process for seeking sanctions under Rule 11 of the Federal Rules of Civil Procedure.<span> </span>Rule 11 requires litigants to conduct a reasonable inquiry into the facts and law before filing any paper with the court.<span> </span>Obviously, that didn’t happen here.<span> </span>Astrolabe now has 21 days to withdraw its Complaint.<span> </span>If it doesn’t do so, the Rule 11 “safe harbor” expires and we’re free to ask the court for sanctions.<span> </span>Once the court reviews Astrolabe’s preposterous claims, and their dangerous consequences, we expect it will agree with us and punish both the company and its attorney so they never again try to abuse the legal process.<span> </span></p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/astrolabe-v-olson">Astrolabe v. Olson</a></div></div></div>Thu, 12 Jan 2012 20:58:34 +0000corynne68168 at https://www.eff.orgNo Downtime for Free SpeechThe Internet Blacklist vs. The Constitutionhttps://www.eff.org/fr/deeplinks/2011/12/internet-blacklist-vs-constitution
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Last week, two leading Constitutional scholars <a href="http://ammori.org/2011/12/08/controversial-copyright-bills-would-violate-first-amendment-letters-to-congress-by-laurence-tribe-and-me/">offered detailed analyses</a> of the Internet blacklist bills now pending in Congress, the Stop Online Piracy Act (SOPA) and Protect-IP, or PIPA. Both scholars concluded that the proposed law could not pass muster under the U.S. Constitution. <strong>So you’d think that the <a href="https://www.eff.org/deeplinks/2011/12/sopa-managers-amendment-sorry-folks-its-still-blacklist-and-still-disaster">new version</a> of SOPA circulated this week would have resolved those concerns.</strong><span> </span></p>
<p class="MsoNormal"><strong>You’d think wrong</strong>.<span> </span>While the revised SOPA briefly mentions the First Amendment, the substantive text makes clear that's just lip service.<span> </span>Here’s a selection of fundamental flaws that remain in both SOPA and PIPA:</p>
<p class="MsoNormal"><strong>First, both bills would still result in the censoring of non-infringing speech.</strong><span> </span>That is because they allow for the blocking of entire websites – even though the site may contain a great deal of perfectly legal speech.<span> </span>The Supreme Court has repeatedly affirmed, “broad prophylactic rules in the area of free expression are suspect<span> </span>. . . Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” As Professor Laurence Tribe puts it, “The First Amendment requires that the government proceed with a scalpel – by prosecuting those who break the law – rather than with the sledgehammer approach of SOPA, which would silence speech across the board.” And if you think the government will at least be precise in choosing which sites to target (not that the Constitutional analysis turns on the government’s good intentions), recall the disgraceful treatment of <a href="https://www.eff.org/deeplinks/2011/12/blacklist-bills-ripe-abuse-part-ii-expansion-government-powers">some of the site</a>s targeted by the government as part of “Operation In Our Sites.”<span> </span></p>
<p class="MsoNormal"><strong>Second, the bills allow the government to obtain blocking orders</strong> without an adversary proceeding, which means that the right of U.S. citizens to receive information from abroad would be denied, <strong>without any real test of the merits of the infringement claim</strong>. To be clear, this process is unconstitutional even though the originators of the speech are outside of the United States (though, in some cases, the originators could be U.S. residents, e.g., folks posting comments on a foreign site’s forums), because the First Amendment protects our right to receive information as well as send it.<span> </span>Tribe points to a chilling parallel in a Supreme Court case which held that the Post Office could not keep a list of U.S. citizens receiving “communist political propaganda” (which, of course, intimidated those citizens from doing so) even though the “propagandists” were located abroad.</p>
<p class="MsoNormal"><strong>Third, as Professor Marvin Ammori notes, the bills would impermissibly regulate the speech of advertisers, search engines and DNS providers.<span> </span></strong>Normally, similar blocking orders would require at a minimum, a finding that the actual speech in question (e.g., search results, which are protected as opinion, or truthful advertising) results in some irreparable harm.<strong><span> </span>In addition,</strong> <strong>by allowing injunctions against tools that could be used to circumvent the blocking orders, SOPA could be used to target any number of sites that are merely providing technical information</strong> – including information desperately needed by human rights workers and political dissidents facing all-too similar censorship regimes abroad.</p>
<p class="MsoNormal">Defenders of the bill will insist that normal First Amendment scrutiny does not apply, because the bill targets copyright infringement.<span> </span>Leaving aside that the bill also targets trademark infringement (and courts are clear that trademark law must be balanced against the First Amendment), Professor Ammori explains why that theory won’t hold water.<span> </span>In a nutshell, copyright laws only avoid First Amendment scrutiny when they hew to the “traditional contours” of copyright.<span> </span>These bills go well outside those traditional contours to burden clearly non-infringing speech, e.g., search results, advertisements, and commentary on sites that also “promote” infringement, a burden that is not incidental but rather essential to the regulatory scheme.</p>
<p class="MsoNormal"><strong>It is <a href="https://www.eff.org/deeplinks/2011/12/sopa-undermines-united-states-oecd-negotiations-free-open-internet">ironic,</a> to say the least, that Congress is contemplating these blacklist bills just as the U.S. government is <a>actively criticizing all-too-similar</a> regimes around the world</strong>.<span> W</span>e take heart in knowing that in the United States we have a Constitution, and a general public, that will not tolerate censorship.</p>
<p class="MsoNormal">But as the saying goes, <strong>the price of liberty is eternal vigilance.</strong> Please take action now to defend not just the Internet, but your constitutional rights.<strong><span> A critical hearing on SOPA will take place tomorrow. </span></strong><a href="https://wfc2.wiredforchange.com/o/9042/p/dia/action/public/?action_KEY=8336">Call your representative</a> to tell him or her that you oppose this bill – and then ping five friends and ask them to do the same!</p>
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</div></div></div>Wed, 14 Dec 2011 21:28:08 +0000corynne67977 at https://www.eff.orgLegal AnalysisFree SpeechNo Downtime for Free SpeechSOPA/PIPA: Internet Blacklist LegislationSOPA Manager’s Amendment: It’s Still A Blacklist and It's Still A Disasterhttps://www.eff.org/fr/deeplinks/2011/12/sopa-managers-amendment-sorry-folks-its-still-blacklist-and-still-disaster
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal">Representative Lamar Smith, the principal sponsor of the Stop Online Piracy Act (SOPA), a dangerous and unconstitutional Internet blacklist bill now working its way through the House of Representatives, has released a <a href="http://judiciary.house.gov/hearings/pdf/HR%203261%20Managers%20Amendment.pdf">“manager’s amendment”</a> that reworks some of the bill’s worst provisions.<span> </span>While the new version jettisons some of the most harmful language, it doesn’t go nearly far enough.</p>
<p class="MsoNormal">The best thing about the new version is it no longer allows a private actor to effectively cut off payment processing for websites with a simple notice.<span> </span>The bill also endeavors to narrow the range of targets to non-U.S. sites.<span> </span>And, the authors have had the good sense to eliminate language that would have put sites under threat if even a single page was arguably linked to infringement.</p>
<p class="MsoNormal">These are positive steps, but frankly, the original provisions were so overbroad and poorly written that we suspect the bill's backers had always planned to eliminate them, as a supposed “compromise.”</p>
<p class="MsoNormal"><b>So let’s be clear: this new version is no compromise.</b><span> </span>It still gives the Attorney General and rightholders the right to obtain blacklist orders.<span> </span>There is new ambiguity as to how the blacklist will be enforced (service providers who receive the order have some flexibility as to how they will comply) – but the effect will be the same: a balkanized Internet and a fundamental <a href="https://www.eff.org/deeplinks/2011/12/ifreedom-conference-state-leaders-future-free-expression-online">contradiction</a> in U.S. Internet policy.<span> </span>It still contains vague and ambiguous language that will take decades of expensive litigation to parse – with free speech under threat all the while.<span> </span>It still <a href="https://www.eff.org/deeplinks/2011/11/hollywood-new-war-on-software-freedom-and-internet-innovation">targets tools </a>that might be used to “circumvent” the blacklist, even if those tools are essential to human rights activists and political dissidents around the world.<span> </span>And so on.</p>
<p class="MsoNormal">Techdirt has some excellent <a href="http://www.techdirt.com/articles/20111212/14010917054/lamar-smith-proposes-new-version-sopa-with-just-few-changes.shtm">comments</a> as well. </p>
<p class="MsoNormal">We’ve said it before: <a href="https://www.eff.org/deeplinks/2011/10/sopa-hollywood-finally-gets-chance-break-internet">this bill cannot be fixed</a>, it must be killed. SOPA is set for a hearing on Thursday, the next step in the proponents’ desperate effort to slip it through Congress without serious scrutiny.<span> </span>If you oppose this bill – and you should – <a href="https://www.eff.org/deeplinks/2011/12/stand-and-fight-week-action-against-censorship">please call your Representative <i>now</i></a> – and then call five friends to ask them to do the same.<span> </span>Check out our <a href="https://www.eff.org/deeplinks/2011/12/fight-blacklist-toolkit-anti-sopa-activists">activist toolkit</a> for more steps you can take to defend a free and open Internet.</p>
</div></div></div>Tue, 13 Dec 2011 19:00:08 +0000corynne67963 at https://www.eff.orgLegislative AnalysisNo Downtime for Free SpeechSOPA/PIPA: Internet Blacklist LegislationKnow Before You Go, Part 2: Burning Man Improves Ticket Terms But Retains Takedown Powershttps://www.eff.org/fr/deeplinks/2011/01/know-you-go-part-2-burning-man-improves-ticket
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>At EFF, we like to give credit where it is due. Over the past few years, we’ve <a href="http://www.eff.org/deeplinks/2009/08/snatching-rights-playa">repeatedly</a> <a href="http://www.eff.org/deeplinks/2010/02/know-you-go-burning-man-tickets-come-higher-price">called out</a> the Burning Man Organization (BMO) for using online ticket terms to require participants to assign to BMO, in advance, the copyrights to any pictures they took on the playa. The assignment was designed to allow BMO to send takedown notices under the Digital Millennium Copyright Act (DMCA) if it discovers photos online that it finds objectionable. We also criticized how the terms limited participants’ ability to donate their works to the public domain or to license their works through Creative Commons, and restricted ticket holders' ability to make fair uses of BMO trademarks, such as the (trademarked) term "Burning Man," on any website. </p>
<p>Our comments sparked a small uproar in the Burning Man community, which eventually led to a series of conversations (some of which involved EFF) about Burning Man image use policies. Those conversations have at last borne fruit: Tickets for the 2011 event just went on sale, accompanied by new terms that were intended, in part, to acknowledge the concerns we had expressed. We’re happy to report that BMO has made some real progress. However, we have to admit that we're disappointed some very onerous terms remain. </p>
<p>The <a href="http://tickets2.burningman.com/info.php?i=2386">new terms</a> make some important improvements. For example, they specifically authorize participants to share their works under a Creative Commons Attribution-NonCommercial-ShareAlike license (by-nc-sa). They also state that participants are free to make fair uses of Burning Man trademarks. And they clarify what it means to make “personal use” of one’s images.</p>
<p>We are less sanguine about BMO’s new approach to DMCA takedowns. Rather than requiring users to assign their copyright in their pictures to BMO in advance, the terms now appoint BMO a joint owner in the photos. While cosmetically more palatable than simply taking exclusive ownership, this new legal maneuver does nothing to tackle the real problem: BMO can still send out DMCA takedown notices at will, which means it can censor a work without bothering to even consult the author. </p>
<p>In addition, BMO still reserves the right to demand that participants take down their images “for any reason whatsoever in Burning Man's sole discretion.” Thus, while the contract includes a detailed statement discussing the principles behind BMO's image use policy (e.g., battling the commercialization of the event), the organization refuses to commit that it will only demand that images be taken offline when those principles are violated (e.g., purely commercial uses). And while it has now offered to notify participants if it decides to sue on their behalf, BMO will only extend that basic courtesy if (1) it just happens to have the person’s contact information; and (2) it actually files a lawsuit (meaning, no notice if BMO is just exercising its DMCA censorship powers). </p>
<p>All told, Burning Man deserves credit for revisiting its policies and taking significant steps toward bringing those policies in line with its commitment to promote a <a href="http://www.burningman.com/whatisburningman/about_burningman/mission.html">“society that connects each individual to his or her creative powers.”</a> But it’s too bad the organization was unable to give up its takedown powers. As we noted last year, a benevolent censor is still a censor—and BMO may not always be so benevolent. And we continue to fear that other event organizers will follow suit, and that assignment and abrogation of rights will become standard terms in all online contracts. This is not a place where BMO should be exercising leadership. </p>
</div></div></div>Fri, 21 Jan 2011 00:45:32 +0000corynne61246 at https://www.eff.orgCommentaryNo Downtime for Free SpeechSecrets of the "New Music Industry" that the "Old Music Industry" Doesn't Want to Knowhttps://www.eff.org/fr/deeplinks/2010/11/secrets-new-music-industry-old-music-industry
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>This week's news that the feds <a href="https://www.eff.org/deeplinks/2010/11/us-government-seizes-82-websites-draconian-future">seized</a> 82 websites based on allegations of copyright infringement demonstrated that government website seizures can silence innocent speech. But let's take a broader view for a moment. The domain seizure debacle, the COICA Internet censorship bill, ACTA, and many other short-sighted efforts to eliminate copyright infringement all depend on (a) the traditional entertainment industry's yowling wail that "piracy" on the the Internet is injuring the livelihoods of artists and (b) the US government's chronically uncritical acceptance of those complaints.</p>
<p>But the new services catering to musicians are struggling to tell their side of the story — a story that turns out to be substantially more optimistic and instructive. Jeff Price, CEO of TuneCore, <a href="http://blog.tunecore.com/2010/10/music-purchases-and-net-revenue-for-artists-are-up-gross-revenue-for-labels-is-down.html">posted a fantastic six-part series titled "The State of The Music Industry &amp; the Delegitimization of Artists"</a> that surfaces this new perspective that desperately needs to be heard in the debate.</p>
<p>Here are some key ideas from the series:</p>
<ul><li>U.S. music purchases overall are up year-to-year, while album sales are down. In other words, <a href="http://blog.tunecore.com/2010/10/music-purchases-and-net-revenue-for-artists-are-up-gross-revenue-for-labels-is-down.html">artists are making more money, while the labels are making less</a>.</li>
<li>Price presents some insightful <a href="http://blog.tunecore.com/2010/10/music-purchases-and-net-revenue-for-artists-are-up-gross-revenue-for-labels-is-down.html">back-of-the-napkin math</a> comparing (a) an artist's take from selling and distributing CDs with a label, to (b) an artist's take from selling songs and albums online: "By selling just two songs on iTunes for $1.98, the artist makes the same amount of money as if a $16.98 full length CD was bought. An artist sells one digital album for $9.99 and makes 500% more than a signed band."</li>
<li>The traditional music industry insists on measuring artist success via album sales, which <a href="http://blog.tunecore.com/2010/10/the-state-of-the-music-industry-and-the-delegitimization-of-artists-pt-3-how-a-skewed-perspective-de.html">harms</a> artists that are nonetheless popular, interesting, relevant, and profitable.</li>
<li>Outdated copyright and trademark laws can actually <a href="http://blog.tunecore.com/2010/11/the-state-of-the-music-industry-and-the-delegitimization-of-artists-pt-5-when-good-laws-turn-bad.html">impede</a> independently successful artists from capitalizing on all available opportunities.</li>
</ul><p>The takeaway? Thanks to technology and Internet-enabled services, more music is being purchased, more music is being heard, and artists are getting paid. But the traditional music industry measures success using a bygone standard, leading to a lopsided perspective of how artists can achieve success in this day and age. And in our view, this leads to an undervaluing of the broad, actual advantages of the Internet — and innovative services using the Internet as a platform — in rewarding artists for their creativity.</p>
<p>We hope that Congress and other decision makers think twice before accepting that dangerous Internet censorship measures like COICA actually represent what's best for artists. And Jeff Price's series ought to be required reading for anyone thinking of legislating or giving over government resources to copyright enforcement on websites.</p>
<p>From the story that Jeff Price is telling, updating the laws to help artists take advantage of new opportunities would provide far more value without also threatening free speech, damaging the technical underpinnings of the Internet, and limiting innovation.</p>
</div></div></div>Wed, 01 Dec 2010 21:58:02 +0000richard61185 at https://www.eff.orgCommentaryNo Downtime for Free SpeechSOPA/PIPA: Internet Blacklist LegislationU.S. Government Seizes 82 Websites: A Glimpse at the Draconian Future of Copyright Enforcement?https://www.eff.org/fr/deeplinks/2010/11/us-government-seizes-82-websites-draconian-future
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Over the past few days, the U.S. Justice Department, the Department of Homeland Security and nine U.S. Attorneys’ Offices seized 82 domain names of websites they claim were engaged in the sale and distribution of counterfeit goods and illegal copyrighted works. </p>
<p>Setting aside the due process concerns inherent in seizing <em>any</em> website without notice or appropriate recourse for the owner, it appears that the "raid" has swept up several sites that are hardly in the business of willful copyright infringement. For example, the <a href="http://rapfix.mtv.com/2010/11/26/onsmash-rapgodfathers-websites-seized-by-authorities/">the list of targets included</a> OnSmash.com and RapGodfathers.com. Both sites are dedicated to promoting rap and hiphop, showcasing new artists and helping fans connect and share information about the music they love. According to the owners, they regularly and expeditiously process copyright infringement notices and take down links as appropriate. Indeed, OnSmash says the labels themselves are often the source of the links OnSmash makes available. In other words, they try to play by the rules. Moreover, the sites are not simply collections of links; rather, they provide a wide array of information and forums for speech, all of which was rendered inaccessible by the seizure.</p>
<p>This type of seizure is not unprecedented, but we haven’t seen it happen on such a broad scale before. This kind of mass action raises at least three concerns:</p>
<p><strong>First, these seizures may be just a short preview of the kind of overreaching enforcement we’ll see if the Congress passes the Combating Online Infringement and Counterfeits Act (COICA).</strong> That bill, which was approved by the Senate Judiciary Committee on Nov 18, gives the government dramatic new copyright enforcement powers, in particular the ability to make entire websites disappear from the Internet if infringement, or even links to infringement, are deemed to be "central" to the purpose of the site. Rather than just targeting files that actually infringe copyright law, COICA’s "nuclear-option" design has the government blacklisting entire sites out of the domain name system — a reckless scheme that will undermine global Internet infrastructure and censor legitimate online speech. As we’ve <a href="https://www.eff.org/deeplinks/2010/11/case-against-coica">noted</a>, one of the most pernicious effects of COICA is likely to be just what we’ve seen here: the takedown of legitimate speech. </p>
<p><strong>Second, the seizures also show why this kind of enforcement doesn’t work; seized sites were available at <a href="http://www.rapgodfathers.info/">other domain names</a> within hours.</strong> If the United States government increases interference in critical DNS infrastructure to police alleged copyright infringement, it is very likely that a large percentage of the Internet will shift to alternative DNS mechanisms that are located outside the US. This will cause numerous problems — including new network security issues, as a large percentage of the population moves to encrypted offshore DNS to escape the censoring effects of the procedures outlined in COICA. Presumably the DOJ and the DHS should be committed to improving network security — not undermining it.</p>
<p><strong>Third, it’s hard to believe that this kind of action is the best use of the Department of Homeland Security’s resources.</strong> What investigations didn’t occur while the DHS spent its time and energy pursuing the agenda of large media companies? Moreover, it’s highly unlikely that this publicity stunt will really help creators get compensated. The best way to help artists of every stripe get compensated for their work is to make sure that there is a thriving marketplace of innovative digital businesses to pay them — business like OnSmash, which is committed to promoting new and unheralded artists.</p>
<p>We hope the legislators considering COICA will take a hard look at these issues before they vote. In the meantime, government officials should take an equally hard look at their enforcement priorities before they spend more of our tax dollars chasing websites. </p>
</div></div></div>Mon, 29 Nov 2010 22:35:49 +0000corynne61183 at https://www.eff.orgLegal AnalysisNo Downtime for Free SpeechSOPA/PIPA: Internet Blacklist LegislationCopyright Abuse in Ohio Governor Electionhttps://www.eff.org/fr/deeplinks/2010/10/copyright-abuse-ohio-governor-election
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p><b>UPDATE: The video was restored on October 8. We thank YouTube for its willingness to restore the video so promptly.</b></p>
<p>With just weeks to go before Ohio votes on its next governor, the contest has devolved into a copyright squabble that is keeping a political video off YouTube on the basis of a bogus copyright claim.</p>
<p>A couple of days ago, <a href="http://en.wikipedia.org/wiki/John_Kasich">Congressman John Kasich</a> put out a <a href="http://www.youtube.com/watch?v=KAlqhcF08KA">commercial</a> that featured a man dressed as a steelworker discussing <a href="http://en.wikipedia.org/wiki/Ted_Strickland">Governor Ted Strickland</a>’s record. It turns out that the steelworker depicted in the commercial wasn't an actual steelworker, but paid actor Chip Redden.</p>
<p>In response, the <a href="http://www.ohiodems.org/blog/paid_actor_in_congressman_kasichs_attack_ad_distorts_steelworkers_views/">Ohio Democratic Party</a> promptly published a YouTube video capitalizing on this, illustrating its point with short clips from Redden's acting career. One of the clips came from a film by <a href="http://www.arginatestudios.com/">Arginate Studios, LLC</a>, which then used the DMCA (Digital Millennium Copyright Act) to send a take down demand to YouTube. YouTube <a href="http://www.youtube.com/watch?v=R48YAEcKZeU">removed</a> the video. Under the DMCA, the political video would be unavailable on YouTube for at least 10 days (a significant portion of the time remaining before the election), though the <a href="http://vimeo.com/15634804">video</a> remains available on Vimeo:<br /></p><center>
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<a href="https://www.eff.org/deeplinks/2008/02/embedded-video-and-your-privacy">Privacy info.</a> This embed will serve content from <em><a rel="nofollow" href="http://player.vimeo.com/video/15634804">vimeo.com</a></em><br /> </div>
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<p><span><a href="http://vimeo.com/15634804">Untitled</a> from <a href="http://vimeo.com/user4910223">Jeremy Froughlin</a> on <a href="http://vimeo.com">Vimeo</a>.</span></p>
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<p>While the use of copyright to take down political speech in the weeks before an election is <a href="http://www.eff.org/files/filenode/ip_freespeech/letter%2Bto%2BYouTube.pdf">hardly new</a> (CDT just published a detailed <a href="http://www.cdt.org/files/pdfs/copyright_takedowns.pdf">report</a>), this is a particularly egregious example. Why? Because the reuse of a few seconds of Aringate's video to to illustrate a political point is such an obvious fair use.</p>
<p>As an initial matter, the use is extremely transformative (adding new meaning and message). The <a href="http://www.vimeo.com/15547886">original video</a> by Arginate is an entry in a <a href="http://www.facebook.com/notes/columbus-48-hour-film-project/suggested-note-to-the-press/120161838040154">film festival's</a> "Road Movie" genre, featuring Redden as Sam Carpenter, a man who provides some special tickets to two women in a bar. The political video's use, on the other hand, was to provide evidence that the supposed steelworker was actually a paid actor. The use could hardly be more transformative. As the Supreme Court explained, transformative works "lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright."</p>
<p>Moreover, the political ad only used a few seconds of the original film. While courts have held that "entire verbatim reproductions are justifiable where the purpose of the work differs from the original," a fair use is particularly justifiable when it uses the minimum necessary to make its point.</p>
<p>Since the original remains available for free online, it can hardly be said that there is any harm to the market for the original work. As the Supreme Court said, "a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create.”</p>
<p>Finally, fair use analysis considers whether the new work benefits the public interest. Communicating with the public about an upcoming election is a core aspect of public debates, and the new video contributes to that debate.</p>
<p>Arginate Studios should be ashamed to have claimed the video was infringing, and should withdraw its takedown notice immediately. YouTube should put the video back up. And Arginate should take a closer look at Section 512(f) of the DMCA — which provide penalties for misrepresenting that an online video is infringing — before sending any more notices.</p>
</div></div></div>Fri, 08 Oct 2010 01:02:03 +0000kurt61138 at https://www.eff.orgLegal AnalysisFree SpeechFair UseNo Downtime for Free SpeechCensorship of the Internet Takes Center Stage in "Online Infringement" Billhttps://www.eff.org/fr/deeplinks/2010/09/censorship-internet-takes-center-stage-online
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Senator Patrick Leahy yesterday <a href="http://www.govtrack.us/congress/bill.xpd?bill=s111-3804">introduced</a> the "Combating Online Infringement and Counterfeits Act" (COICA). This flawed bill would allow the Attorney General and the Department of Justice to break the Internet one domain at a time — by requiring domain registrars/registries, ISPs, DNS providers, and others to block Internet users from reaching certain websites. The bill would also create two Internet blacklists. The first is a list of all the websites hit with a censorship court order from the Attorney General. The second, more worrying, blacklist is a list of domain names that the Department of Justice determines — without judicial review — are "dedicated to infringing activities." The bill only requires blocking for domains in the first list, but strongly suggests that domains on the second list should be blocked as well by providing legal immunity for Internet intermediaries and DNS operators who decide to block domains on the second blacklist as well. (It's easy to predict that there will be tremendous pressure for Internet intermediaries of all stripes to block these "deemed infringing" sites on the second blacklist.)</p>
<p>COICA is a fairly short bill, but it could have a longstanding and dangerous impact on freedom of speech, current Internet architecture, copyright doctrine, foreign policy, and beyond. In 2010, if there's anything we've learned about efforts to re-write copyright law to target "piracy" online, it's that they are likely to have <a href="https://www.eff.org/wp/unintended-consequences-under-dmca">unintended</a> <a href="http://www.eff.org/deeplinks/2010/09/jack-booted-thugs-and-copyright-enforcement">consequences</a>.</p>
<p><strong>This is a censorship bill that runs roughshod over freedom of speech on the Internet.</strong> Free speech is vitally important to democracy, which is why the government is restricted from suppressing speech except in very specific, narrowly-tailored situations. But this bill is the polar opposite of narrow — not only in the broad way that it tries to define a site "dedicated to infringing activities," but also in the solution that it tries to impose — a block on a whole domain, and not just the infringing part of the site.</p>
<p>We note that the DMCA already gives copyright owners legal tools to remove infringing material piece-by-piece, and to obtain injunctions requiring ISPs to block certain offshore infringing websites. The misuse of the existing DMCA provisions have had a tremendously damaging impact on fair use and free expression. By comparison, COICA streamlines and vastly expands this; it would allow the AG to shoot down a whole domain including all the blog posts, images, backups, and files underneath it. In other words, it's not just possible but probable that a great deal of legitimate, protected speech will be taken down in the name of copyright enforcement.</p>
<p><strong>It is designed to undermine basic Internet infrastructure.</strong> When a user enters "eff.org" into their web browser, what responds is a domain name system server that tells the users' browser where EFF's website is located on the Internet. This bill would have the Attorney General prevent the players in that domain name system (possibly including your ISP) from telling you the truth about a website's location.</p>
<p>And it's not clear what a user would see in this situation — would it look like a "404 message," that simply says a site or page could not be found, without explaining why? Would users receive some kind of notice clarifying that the site they were seeking was made inaccessible at the behest of the government? Generally speaking, the bill forces all the Internet "middlemen" to act as if a part of the Internet doesn't exist, even though that page may otherwise be completely available and accessible.</p>
<p><strong>COICA sends the world the message that the United States approves of unilateral Internet censorship.</strong> Which governments deny their citizens access to parts of the Internet? For now, it is mostly totalitarian, profoundly anti-democratic regimes that keep their citizens from seeing the whole Internet. With this bill, the United States risks telling countries throughout the world, "Unilateral censorship of websites that the government doesn't like is okay — and this is how you do it."</p>
<p><strong>The bill's imbalances threaten to complicate existing laws and policies.</strong> The bill includes poorly drafted definitions that threaten fair use online, endanger innovative backup services, and raises questions about how these new obligations on Internet intermediaries are intended to fit with existing US secondary liability rules and the DMCA copyright safe harbor regime. Moreover, it seems easy to get on the blacklist — the bill sets up a seemingly streamlined procedure for adding domains (including a McCarthy-like procedure of public snitching) — but in contrast, it seems difficult to get off the list, with a cumbersome process to have a blacklisted domain removed.</p>
<p>And what do we get in exchange? Not much, if the goal is to actually limit unauthorized copying online. The bill gives the government power to play an endless game of whack-a-mole, blocking one domain after another, but even a relatively unsophisticated technologist can begin to imagine the workarounds: a return to encrypted peer-to-peer, modified /etc/hosts files (that don't rely on the domain name system for finding things on the Internet), and other tools, which will emerge and ensure that committed pirates have a way to route around the bill's damage to the DNS system.</p>
<p>To us, COICA looks like another misguided gift to a shortsighted industry whose first instinct with respect to the Internet is to try to break it. There are still many questions to be answered, but one thing is for sure — this bill allows the government to suppress truthful speech and could block access to a wealth of non-infringing speech, and the end result will do little to protect artists or mollify the industries that profit from them. Stay tuned for more analysis, information, and steps you can take to fight Internet censorship.</p>
</div></div></div>Tue, 21 Sep 2010 22:08:42 +0000richard61127 at https://www.eff.orgLegislative AnalysisDMCAFair UseNo Downtime for Free SpeechSOPA/PIPA: Internet Blacklist LegislationJack-Booted Thugs and Copyright Enforcementhttps://www.eff.org/fr/deeplinks/2010/09/jack-booted-thugs-and-copyright-enforcement
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>When it comes to copyright enforcement and the government, EFF frequently warns that giving government agents a reason to censor, search, seize, and indict must be taken very seriously. Without safeguards and a thorough accounting of the consequences, laws and policies targeting so-called "pirates" can be used to pry away human rights and undermine fundamental elements of democracy and freedom.</p>
<p>We saw damning evidence of this unfold this past weekend. On Saturday, the New York Times <a href="https://www.nytimes.com/2010/09/12/world/europe/12raids.html">broke</a> news of Russian law enforcement officers raiding an environmental group's offices and confiscating computers. What excuse did the police officers give for raiding the environmental group? Because Russian security services were investigating claims (unfounded, as it turned out) that the group had <em>unauthorized copies of Microsoft software</em>.</p>
<p>The New York Times article goes on to explain that the raid on the environmental group is only a recent example of a growing pattern: "Across Russia, the security services have carried out dozens of similar raids against outspoken advocacy groups or opposition newspapers in recent years." For those familiar with the hard line copyright maximalist position — which holds that all copyright infringement should be swiftly prosecuted with harsh penalties regardless of the context — it was sadly unsurprising. (This risk is one reason that NGOs around the world choose <a href="http://www.fsf.org/">free and open source</a> tools that avoid the risk of copyright claims altogether.)</p>
<p>Fortunately, at this juncture, Microsoft has recognized this as an important human rights issue, and has responded responsibly and innovatively. The company <a href="https://www.nytimes.com/2010/09/14/world/europe/14raid.html">plans</a> to offer protection to advocacy groups and others who might be targeted for political reasons by issuing a blanket software license to advocacy groups and opposition newspapers in Russia and at least some other places in the world. The software license — which would allegedly be made easily and widely available — should help groups insulate themselves from political attacks and human rights violations clothed as accusations that Microsoft software has been stolen. (Whether or not law enforcement officials will respond to such a license when they're about to bust down the door of an advocacy group's office is another question entirely.) Microsoft has not said in which other countries it would offer this blanket license. We urge Microsoft to extend this offer worldwide.</p>
<p>But this issue isn't limited to Microsoft or to software. A sprawling, powerful group-of-groups in the content industry, including movie and music industry lobbyists, software companies, and others, is constantly demanding that governments worldwide be given new powers to search for and seize allegedly pirated materials, and that those governments should act on those powers forcefully. In the name of copyright enforcement, the lobby shortsightedly demands provisions that put human rights at risk throughout the world: the power for governments to <a href="http://www.eff.org/deeplinks/2007/12/music-industry-europe-filter-pressure">censor parts of the Internet</a> with so-called copyright filtering, power for governments' border agents to <a href="http://keionline.org/content/view/190/1">search travelers' goods for "infringing" items</a>, power for governments to <a href="http://www.techdirt.com/article.php?sid=20100405/1835388888">detain alleged infringers pre-trial</a>.</p>
<p>If the copyright lobby gets their way with the <a href="http://www.techdirt.com/articles/20100908/23324410951.shtml">Anti-Counterfeiting Trade Agreement</a> (ACTA) or if <a href="http://news.cnet.com/8301-31001_3-20008432-261.html">governments</a> continue to act on the claim that "piracy" demands sweeping changes to Internet privacy and freedom, then we can generalize the New York Times headline — "Russia Uses Microsoft to Suppress Dissent" — into something we'll surely see more often: "Regime Uses Copyright Violations to Curtail Freedoms."</p>
<p>This episode should remind legislators and policymakers worldwide of the real risk that powers enacted in the name of copyright enforcement can to be used to do real harm. Ensuring balance in copyright law is not just good copyright policy — it's necessary to protect human rights and fundamental freedoms worldwide.</p>
<p><strong>UPDATE:</strong> On September 23, 2010, Microsoft <a href="http://blogs.technet.com/b/microsoft_blog/archive/2010/09/23/microsoft-s-ngo-software-license.aspx">published</a> details about their software license for non-governmental organizations (NGOs) and media organizations.</p>
</div></div></div>Wed, 15 Sep 2010 00:08:52 +0000richard61123 at https://www.eff.orgCommentaryFree SpeechInternationalNo Downtime for Free Speech"YouTube Is UsTube": Creators Step in to Defend YouTubehttps://www.eff.org/fr/deeplinks/2010/05/youtube-ustube-creators-explain-why-you-should
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Plenty of folks, from copyright lawyers to Internet entrepreneurs to investment bankers, have been watching the long-running <a href="http://www.eff.org/cases/viacom-v-youtube">legal battle</a> between Viacom and Google/YouTube carefully, well aware that a decision in the case could have a profound effect on the future of the Internet. But most YouTube users probably haven't given it the same attention. They should, and in an <a href="http://www.eff.org/files/Sideshow-Coalition-amicus.pdf">amicus brief</a> filed in support of YouTube last week, a group of YouTube video creators explains why.</p>
<p>Calling themselves "The Sideshow Coalition" (because Viacom has called their interests a "sideshow"), these creators tell their own personal stories of how YouTube has helped them find a broader audience than they had ever imagined they could reach, with all kinds of unexpected effects. A few examples from the brief:</p>
<ul><li>Barnett Zitron, who created "Why Tuesday," a political video blog focused on increasing voter turnout that has helped register over half a million college students to vote.</li>
<li>Mehdi Saharkhiz, who created a YouTube channel to spread awareness about government human rights abuses in Iran and frequently posts videos from contacts in Iran who record the videos on their cell phones.</li>
<li>Phillip de Vellis, who created and uploaded to YouTube a video supporting President Obama’s candidacy, hoping it would be viewed by a few thousand people. "Instead, millions viewed it and the San Francisco Chronicle described it as 'a watershed moment in 21st century media and political advertising.'"</li>
<li>Arin Crumley, who could not get conventional financing for a film he wanted to make, and decided instead to self-produce it and post it to YouTube. The first full length movie ever uploaded to the site, it was viewed more than a million times, and then the Independent Film Channel picked it up. </li>
<li>Dane Boedigheimer, who wanted to be a filmmaker since he was 12 years old and would spend hours each day with his parents’ 8mm camera. "In the conventional media, it would have taken years before he might even have a chance to direct films. However, with YouTube, Boedigheimer was able to create a series called 'Really Annoying Orange' whose episodes have been viewed 130 million times."</li>
</ul><p>These creators praise YouTube for removing the gatekeeper between them and their audiences. “We can now be our own television and cable stations and our own record labels and record stores. We suspect that the threat that truly concerns Plaintiffs is not copyright infringement but just competition.”</p>
<p>Unlike most of the parties and amici who have filed in this case <a href="http://www.eff.org/press/archives/2010/04/12">(including EFF),</a> these friends of the court don't focus on the legal doctrines at stake in this case. Instead, they remind us why these legal issues matter, i.e., what's really at stake in a case that tries to hold intermediaries liable for what users post online:<br /></p><blockquote>
<p>It is pretty clear that on a scale of incentives to censor, the billion dollars that Plaintiffs seek in this lawsuit rates pretty high. If YouTube is made responsible for everything that we say, then naturally YouTube will want to exercise control over what we say. No online service would risk enabling the universe of users to speak in their own words if it faced liability for anything that anyone said.</p>
<p>Therefore, we ask that as the Court decides this case, it consider not just the interests of those who appear in the caption, but also our interests as creative professionals and the interests of the hundreds of millions of people who have viewed our work. </p>
<p>We are not a sideshow. We are what YouTube is all about and what this lawsuit should be about.</p></blockquote>
<p>Just so.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/viacom-v-youtube">Viacom v. YouTube</a></div><div class="field__item odd"><a href="/fr/cases/umg-v-veoh">UMG v. Veoh</a></div></div></div>Mon, 31 May 2010 19:19:44 +0000corynne61032 at https://www.eff.orgCommentaryFair UseNo Downtime for Free SpeechEveryone Who’s Made a Hitler Parody Video, Leave the Roomhttps://www.eff.org/fr/deeplinks/2010/04/everyone-who-s-made-hitler-parody-leave-room
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>One the most enduring (and consistently entertaining) Internet memes of the past few years has been remixes of the bunker scene from the German film, <i>The Downfall: Hitler and the End of the Third Reich (aka Der Untergang).</i> EFF Boardmember Brad Templeton even got in on it, creating a very funny <a href="http://www.youtube.com/watch?v=PzUoWkbNLe8&amp;feature=player_embedded">remix</a> with Hitler ranting about troubles with DRM and the failure of DMCA takedowns to prevent fair uses. (Ironically enough, that video resulted in the Apple Store <a href="http://www.eff.org/deeplinks/2009/06/oh-come-apple-reject">rejecting</a> an EFF newsfeed app.) </p>
<p>In a depressing twist, these remixes are <a href="http://techcrunch.com/2010/04/19/hitler-parody-takedown/">reportedly</a> disappearing from YouTube, thanks to Constantin Film (the movie’s producer and distributor) and YouTube’s censorship-friendly automated filtering system, Content I.D. Because the Content I.D. filter permits a copyright owner to disable any video that contains its copyrighted content -- whether or not that video contains other elements that make the use a noninfringing fair use -- a content owner can take down a broad swath of fair uses with the flick of a switch. It seems that’s exactly what Constantin Film has chosen to do. </p>
<p>This is hardly the first time that Content I.D., has led to overbroad takedowns of legal content. Copyright owners have used the system to take down (or silence) everything from home videos of a teenager <a href="http://www.eff.org/deeplinks/2009/01/youtubes-january-fair-use-massacre">singing</a> Winter Wonderland and a toddler <a href="http://www.eff.org/deeplinks/2009/03/fair-use-massacre-continues-now-warner-s-going-aft">lip-syncing</a> to Foreigner’s Juke Box Hero to (and we’re not making this up) a <a href="http://www.eff.org/deeplinks/2010/03/youtubes-content-id-c-ensorship-problem">lecture</a> by Prof. Larry Lessig on the cultural importance of remix creativity. </p>
<p>YouTube users do have options for response (read our <a href="http://www.eff.org/issues/intellectual-property/guide-to-youtube-removals">"Guide to YouTube Removals"</a> for details.) But YouTube's procedures for "removing" videos have created considerable confusion among users, and it's a fair bet that most YouTube users aren't aware of their ability to "dispute" these removals. Others may be leery of exercising the dispute option. While the risks may be low, our broken copyright system leaves users facing the prospect of paying outrageous statutory damages and even attorneys' fees if they stand up, fight back and, despite overwhelming odds in their favor, lose. It’s a gamble many people just aren’t willing to take, even when their works are clear fair uses.</p>
<p>If copyright owners want to block remix creativity, they should have to use a formal DMCA takedown notice (and be subject to legal punishment if they fail to consider fair use), rather than a coarse automated blocking tool. That is one reason we <a href="http://www.eff.org/issues/ip-and-free-speech/fair-use-principles-usergen">called on</a> YouTube to fix the Content ID system so that it will not automatically remove videos unless there is a match between the video and audio tracks of a submitted fingerprint and nearly the entirety (e.g, 90% or more) of the challenged content is comprised of a single copyrighted work. That was over two years ago, and YouTube told us then that they were working on improving the tool. If YouTube is serious about protecting its users, it is long past time for YouTube to do that work. </p>
<p>UPDATE: Templeton's video was also targeted; check out his discussion on his <a href="http://ideas.4brad.com/studio-does-content-id-takedown-my-hitler-video-about-takedowns">personal blog.</a></p>
</div></div></div>Tue, 20 Apr 2010 19:52:41 +0000corynne60997 at https://www.eff.orgCommentaryNo Downtime for Free SpeechTiffany v. eBay: What About Put-Back?https://www.eff.org/fr/deeplinks/2010/04/tiffany-v-ebay-what-about-put-back
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Last week, a federal appeals court <a href="https://www.eff.org/files/filenode/tiffany_v_ebay/08-3947-cv_opn.pdf">rejected</a> luxury goods retailer Tiffany’s claim that eBay should be liable for trademark violations on its site based on general knowledge that such infringement is happening (but no specific knowledge of a specific infringement). The ruling is a victory for online service providers, eBay sellers, and consumers alike. </p>
<p>As we noted in our <a href="http://www.eff.org/files/filenode/tiffany_v_ebay/effamicus.pdf">amicus brief</a>, Tiffany’s arguments would have resulted in over-policing by intermediaries like eBay. If eBay had to worry about potential trademark lawsuits and liability for every one dollar auction, you can be sure that it would move to reduce risk by blocking even potentially lawful uses of trademarks. What intermediary wants to take a big legal risk for a little customer? That’s the question that translates legal liability for intermediaries into a "clearance culture" that squelches lawful content protected by fair use or other speech-protecting doctrines.</p>
<p>So it’s good that eBay prevailed in last week’s ruling. But the decision highlights a growing problem in trademark enforcement: the lack of avenues for "put back" when a trademark owner makes an improper infringement claim. One key to eBay’s legal success was its rapid notice-and-takedown system, known as <a href="http://pages.ebay.com/vero/intro/index.html">VeRO</a>, which has <a href="http://blog.ericgoldman.org/archives/2010/04/ebay_mostly_bea.htm">helped the company position itself as a sympathetic actor, </a> responding expeditiously to trademark complaints. Savvy intermediaries are likely to adopt similar processes, if they have not already done so. </p>
<p>Unfortunately, <a href="http://www.eff.org/deeplinks/2008/11/de-beers-internet-intermediaries">intermediaries</a> have little incentive to give equal respect to users. Unlike in the copyright area, where Congress created a <a href="http://www.chillingeffects.org/dmca512c/faq.cgi#QID132">"counternotice" procedure</a> that allows a citizen to get lawful content restored after a bogus takedown notice, trademark law provides no such safeguards. The DMCA’s counternotice process relieves a service provider (e.g., YouTube, MySpace, Blogger, etc) from having to make judgment calls about whether something is or is not infringing. Without a similar simple process for service providers in the trademark realm, the cards are stacked against users. Unless the service provider has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit—even if the service provider knows it will win—is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of customers. Thus, even if a user explains that her use is protected by nominative fair use or other trademark doctrines, service providers have little motivation to <a href="http://www.eff.org/deeplinks/2008/04/liberate-b-24-liberator">put content back up</a> unless and until the trademark owner <a href="http://www.eff.org/deeplinks/2008/05/b-24-liberated">withdraws its complaint</a>. And that is not likely to happen unless the target can recruit legal representation to help persuade the trademark owner to see reason. </p>
<p>So we are not as optimistic about the impact of this ruling as we'd like to be. The decision was good for consumers and free speech, but we still have a long way to go to protect against trademark misuse. </p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/tiffany-v-ebay">Tiffany v. eBay</a></div></div></div>Tue, 06 Apr 2010 23:21:45 +0000corynne60986 at https://www.eff.orgCommentaryNo Downtime for Free SpeechViacom Makes Its Case Against Yesterday's YouTubehttps://www.eff.org/fr/deeplinks/2010/03/viacom-makes-its-case-against-yesterdays-youtube
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Today, after <a href="http://www.eff.org/deeplinks/2007/03/viacom-v-google-investing-litigation-rather-innovation">three years of litigation</a>, the Viacom v. YouTube combatants finally publicly released their briefs (<a href="http://www.viacom.com/news/Pages/youtubelitigation.aspx">Viacom's</a>; <a href="http://www.google.com/press/pdf/20100318_google_viacom_youtube_memorandum.pdf">YouTube's</a>; <a href="http://www.eff.org/files/Viacom v Youtube - Class MSJ brief.pdf">Class Action Plaintiffs'</a>) in what most expect to be the main event in the case, namely, cross-motions for summary judgment (for the non-lawyers: a summary judgment motion asks the court to rule that the case is such a slam dunk in your favor that no trial is necessary). </p>
<p>One surprise from Viacom is a concession that it basically has no beef with YouTube as it has been run since May 2008: "[W]e do not ask the Court to address potential liability for post-May 2008 infringement in this motion and, if Viacom's summary judgment motion is granted, do not intend to do so at trial." What happened in May 2008? That would be when YouTube launched its <a href="http://www.youtube.com/t/contentid">Content ID system</a>, enabling copyright owners to "claim" their content and decide whether it will be blocked or monetized on YouTube. </p>
<p>In other words, this case isn't really about YouTube (at least YouTube circa 2010). It's about Viacom's effort to get the court to re-write the DMCA safe harbors to <i>require everyone else</i> to implement (and pay for) copyright filtering. If Viacom succeeds, it would radically change the innovation environment for all Internet companies that depend on the DMCA safe harbors. </p>
<p>Why are the DMCA safe harbors so important? YouTube says it best: </p>
<blockquote><p>Congress laid the legal foundation for the modern Internet era when it enacted the DMCA in 1998, protecting online services from liability for copyright infringement claims based on their users’ actions. Congress recognized that robust online communications would be chilled if service providers faced unlimited damages claims based on material that their users posted or transmitted. The DMCA thus created a set of “safe harbors” immunizing service providers who respond properly to copyright holders’ notifications of alleged infringement. That policy choice enabled the evolution of a new generation of websites devoted to user­ generated content, letting individuals the world over express themselves and form new communities through blog posts, social networks, photography, and video.</p></blockquote>
<p>YouTube points out that it follows all the requirements of the DMCA safe harbor for "hosting" providers—it has a Copyright Agent, it terminates repeat infringers, and it responds to DMCA takedown notices, among other things. (Several <a href="http://www.eff.org/deeplinks/2009/09/umg-v-veoh-big-win-online-video">rulings</a> have previously confirmed that video hosting sites like YouTube can qualify for the safe harbors.)</p>
<p>Rather than focusing on any of these points, Viacom instead launches a broad attack on the applicability of the safe harbors to <i>any</i> secondary liability claims (contributory infringement, inducement, or vicarious liability): </p>
<blockquote><p>"Thus, the preconditions of the DMCA immunity reflect and largely track traditional liability standards. If Defendants are liable for infringement under these long established standards, they thereby also lose resort to the DMCA."</p></blockquote>
<p> The trouble with that argument is that it's precisely the opposite of what Congress said it meant to accomplish: </p>
<blockquote><p>"The [DMCA safe harbors] protect qualifying service providers from liability for all monetary relief for direct, vicarious and contributory infringement."</p></blockquote>
<p> (Conference Committee Report, <a href="http://hrrc.org/File/H.R._2281-_conf._report.pdf">H. Rep. 105-796</a> at page 73, the very last word from Congress on what they meant to be doing with the statutory language that became law.)</p>
<p>So what Viacom is asking for here is a radical re-write of the DMCA that, if accepted, would put all kinds of online service providers at risk of huge statutory damages for copyright infringement. Is eBay used to commit copyright infringement every day by some users? Sure. Do people use Microsoft's Bing to find infringing materials? Check. Do online lockering services get used to store infringing materials? Do users send infringing email attachments? How about the "send file" features of every instant messaging system? The only reason these (and many other) online services exist is because the DMCA safe harbors give them rules to follow that are much clearer than <a href="http://www.eff.org/deeplinks/2005/07/remedying-i-grokster-i">the murky standards for "secondary liability."</a> If Viacom is right, then there are no clear rules to follow, except "beg permission from every copyright owner first." And that's a rule that would hobble innovation and competition online. </p>
<p>Fortunately, most of Viacom's arguments are simply a rehash of arguments that have already been rejected <a href="http://www.eff.org/deeplinks/2008/08/required-reading-user-generated-content-sites-io-g">by</a> <a href="http://www.eff.org/deeplinks/2009/01/umg-v-veoh-another-victory-web-2-0">other</a> <a href="http://www.eff.org/deeplinks/2009/09/umg-v-veoh-big-win-online-video">courts</a>. Here's hoping that this court is not fooled. </p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/viacom-v-youtube">Viacom v. YouTube</a></div></div></div>Fri, 19 Mar 2010 00:41:44 +0000fred60961 at https://www.eff.orgLegal AnalysisDMCAFair UseNo Downtime for Free SpeechCreativity & InnovationFox and National Public Radio Have Something in Common: Taking Down Obvious Fair Useshttps://www.eff.org/fr/deeplinks/2010/03/last-fox-and-national-public-radio-have-something
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The Fox News Channel boasts that it takes a different approach to news coverage than, say, <a href="http://www.eff.org/takedowns/cbs-news-censors-mccain-ad-during-heated-president">CBS</a>, <a href="http://www.eff.org/takedowns/nbc-issues-takedown-viral-obama-ad">NBC</a>, or <a href="http://www.eff.org/takedowns/npr-forces-takedown-political-ad-weeks-critical-vo">NPR.</a> But it appears Fox takes the same approach as its competitors when it comes to fair uses of its news coverage in political advertisements: to try to shut them down using the Digital Millennium Copyright Act's rapid-fire notice and takedown process. </p>
<p>Ben Smith at Politico <a href="http://www.politico.com/blogs/bensmith/0310/DNC_writes_Fox_asserting_fair_use.html?showall#">reports</a> that the Fox news network has used a copyright claim to cause YouTube to disable access to a Democratic National Committee advertisement less than 24 hours after it was posted. The ad, which accuses Senate candidates competing in the Republican primary of focusing on trivial issues, excerpted less than a minute of a Fox interview with one of the candidates. </p>
<p>The DNC has fought back, firing off a letter to Fox explaining the "DNC's use of the clip is squarely within the bounds of fair use" and demanding that Fox effectively withdraw the claim. The DNC also implicitly threatens to sue Fox under Section 512(f) if it continues to maintain the copyright allegations, and name checks EFF's <a href="http://www.eff.org/cases/lenz-v-universal">Lenz</a> case in the process. </p>
<p>As a news organization, and so presumably familiar with the concepts and application of fair use, Fox should know better. Let's hope Fox will take this chance to distinguish itself from its rivals and show its support for free speech by withdrawing its spurious copyright claim. </p>
</div></div></div>Fri, 12 Mar 2010 22:24:19 +0000corynne60953 at https://www.eff.orgCommentaryNo Downtime for Free SpeechThe Weakest Link Reduxhttps://www.eff.org/fr/deeplinks/2010/03/weakest-link-redux
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>We often criticize DMCA takedown abuse here at EFF, but last week's <a href="http://www.pcmag.com/article2/0,2817,2360694,00.asp"> Cryptome snafu</a> highlights another facet of the problem: how a DMCA takedown for one item can result in the removal of lots of lawful material. </p>
<p>To recap, Cryptome posted Microsoft’s global criminal compliance manual. Microsoft sent a DMCA takedown notice to Cryptome’s domain name registrar and web hosting provider, Network Solutions, alleging that the post infringed copyright. Under the DMCA, a web hosting provider is protected from copyright infringement liability if, among other things, it “expeditiously” disables access to material properly identified in a DMCA takedown notice. Network Solutions asked Cryptome to remove the Microsoft compliance manual. Cryptome <a href="http://cryptome.org/0001/ms-spy-takedown.htm">refused</a> explaining that the document was posted in order to help the public better understand Microsoft's practices, and followed up with a DMCA counternotice. Network Solutions promptly shut down the <i>entire Cryptome website</i>. Thus, a complaint about a single document caused significant collateral damage to the perfectly legal material on Cryptome. </p>
<p>This illustrates a basic problem built into the DMCA safe harbors. Microsoft’s notice targeted just one document. Network Solutions, however, couldn’t take down that single document, so opted to take down the entire site. Thus, although Cryptome's beef was with Microsoft, Cryptome also had to persuade Network Solutions to take a chance of losing safe harbor protection (although not much of a chance, because Cryptome’s posting was <a href="http://www.eff.org/deeplinks/2010/02/cryptomes-publication-microsofts-compliance-manual">protected by the fair use doctrine</a>). Because Network Solutions wasn't willing to take that small risk, a whole lot of speech was temporarily disappeared. </p>
<p>We’ve recently seen the same scenario with <a href="http://www.eff.org/deeplinks/2010/02/mp3-bloggers-protecting">music bloggers</a>, who may have their entire sites taken down as a result of complaints about a few links to music they’re reviewing. </p>
<p>And sometimes it's not even enough to find a courageous hosting provider. Last year a takedown notice targeting a single site parodying the U.S. Chamber of Commerce resulted in a <a href="http://www.huffingtonpost.com/2009/10/23/chamber-of-commerce-stron_n_332087.html">takedown</a> of the websites of over 300 activist organizations hosted by <a href="http://mayfirst.org/aboutus">MayFirst/PeopleLink</a>. The Chamber of Commerce <a href="https://support.mayfirst.org/wiki/chamber-he-statement">went "upstream,"</a> targeting one of MayFirst's upstream service providers, Hurricane Electric. When MayFirst pushed back, Hurricane shut off service, thus pulling the plug on unrelated websites, email and other online tools.</p>
<p>In all of these cases, copyright owners reach out to a "weak link," the service provider with the least incentive to resist the takedown notice. Unless it has a free lawyer, the cost of doing a fair use analysis and defending a lawsuit—even if the service provider knows it will win—is almost certainly more than a service provider is charging any individual customer, or even a whole bunch of "innocent bystander" customers.</p>
<p>This unfortunate outcome is particularly ironic because Congress gave service providers protections in the DMCA. Service providers who care about free speech have better options:</p>
<ul><li>Remember, if your only relationship to the material targeted is that you provide connectivity to a downstream service, you should qualify for the 512(a) safe harbor, and, therefore don’t have an obligation to take the material down. </li>
<li>Remember also that you don’t need the safe harbor if the material is a non-infringing fair use. In clear cases, <a href="http://www.eff.org/deeplinks/2009/05/youtube-restores">you can bypass DMCA procedures</a>. </li>
<li>If thinking about fair use doesn’t make business sense, or you’re not sure, keep in mind that the DMCA requires only that you act “expeditiously” to respond to a takedown notice. Courts have found that providers should take down material <a href="http://www.eff.org/files/Io%20v.%20Veoh%20(d%20ct).pdf">within a few days</a> of receiving a notice. So if you realize complying with a takedown notice will result in taking down much more material than the notice identifies, take the time to notify the person who sent the notice about the collateral damage it may cause. They may elect to <a href="http://www.pcmag.com/article2/0,2817,2360694,00.asp">withdraw</a> it, especially where they are likely to face public criticism for causing an overbroad takedown.</li>
<li>Give your customer a chance to re-jigger their service to avoid such collateral damage. </li>
<li>Be sure to offer customers a clear counter-notice procedure—the DMCA provides protection for service providers that restore content in response to counter-notices.</li>
</ul><p>Customers who also care about free speech should vote with their wallets and look for providers who will commit to following these suggestions. The safe harbors were supposed to help protect free speech, and they often do—but only if copyright owners, service providers, and internet users follow their common sense as well their business sense. </p>
</div></div></div>Thu, 04 Mar 2010 17:47:04 +0000corynne60945 at https://www.eff.orgCommentaryDMCAFair UseNo Downtime for Free SpeechYouTube's Content ID (C)ensorship Problem Illustratedhttps://www.eff.org/fr/deeplinks/2010/03/youtubes-content-id-c-ensorship-problem
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>
As we've <a href="http://www.eff.org/deeplinks/2009/01/youtubes-january-fair-use-massacre">pointed</a> <a href="http://www.eff.org/deeplinks/2007/10/youtubes-copyright-filter-new-hurdle-fair-use">out</a> <a href="http://www.eff.org/issues/ip-and-free-speech/fair-use-principles-usergen">repeatedly</a>, poor design decisions in YouTube's "<a href="http://www.youtube.com/t/contentid">Content ID</a>" system have resulted in over-blocking of videos that remix copyrighted materials. Today we got perhaps the most vivid example of the problem: the "silencing" of a <a href="http://www.youtube.com/watch?v=9JIp3yStpmg">lecture</a> by Prof. Larry Lessig <i>about the cultural importance of remix creativity</i>. This is just the latest of <a href="">many examples</a>. We've been on YouTube's case for more than two years about this problem, and it's high time for YouTube to fix the Content ID system to respect the kinds of fair uses that are at the heart of remix creativity.
</p>
<p>
How did Prof. Lessig's video trigger the Content ID block? He included "snippets" (I use that word intentionally, as Google does <a href="http://www.google.com/url?q=http://books.google.com/googlebooks/screenshots.html%23snippetview&amp;usg=AFQjCNFNgYIINn2E9_VXHrBAr_wATX_WWQ&amp;ei=Xr2NS4ukFoTkswOP7qDECA&amp;sa=X&amp;oi=section_link&amp;resnum=1&amp;ct=legacy&amp;ved=0CA8QygQ">in the context of its own Book Search product</a>, to refer to small portions that should qualify as a fair use) from several remix videos. As a result, the audio track of his lecture included excerpts of several well-known songs. Apparently at least one of those songs is owned by Warner Music, which has chosen to automatically mute the audio track of any video when the Content ID system detects the presence of those songs. It's not clear which song triggered the block—the Content ID system doesn't tell you that.
</p>
<p>
Of course, in close cases, reasonable minds can differ about whether a particular use of a song qualifies as a fair use (although <a href="http://www.eff.org/deeplinks/2009/03/fair-use-massacre-continues-now-warner-s-going-aft">some cases are easy</a>). But that's no excuse for the automated Content ID filter to block them—if a copyright owner has a good faith belief that any particular remix video crosses the line, it is free to send a formal <a href="http://www.youtube.com/t/dmca_policy">DMCA takedown notice</a>. Sending a notice is not hard, nor expensive, as demonstrated by the fact that copyright owners routinely send hundreds of thousands of these notices to YouTube. YouTube's Content ID system even will flag all the videos for the copyright owner's review.
</p>
<p>
But unlike the automated Content ID blocking, DMCA takedown notices at least put a human into the loop, and these humans <a href="http://www.eff.org/deeplinks/2008/08/judge-rules-content-owners-must-consider-fair-use-">must take fair use into account</a> before issuing the notice. In contrast, an automated match by the Content ID system results in an automated removal, even where the copyright owner does not object to the use (and, as <a href="http://www.eff.org/deeplinks/2009/03/fair-use-massacre-continues-now-warner-s-going-aft">poorly</a> <a href="http://www.eff.org/deeplinks/2009/01/youtubes-january-fair-use-massacre">behaved</a> as Warner Music has been in the past, I can't imagine it really wants to censor Prof. Lessig's lecture).
</p>
<p>
Fortunately, YouTube permits users to <a href="http://www.eff.org/issues/intellectual-property/guide-to-youtube-removals">"dispute"</a> automated Content ID removals, and that's why Prof. Lessig's video is once again available. But that's not nearly good enough. First of all, YouTube's procedures for "removing" videos have created considerable confusion and consternation among users, and it's a fair bet that most YouTube users aren't aware of their ability to "dispute" these removals. Second, the <a href="http://www.eff.org/wp/riaa-v-people-years-later">thousands of lawsuits</a> brought by record labels against individuals for file-sharing has created an <a href="http://www.eff.org/deeplinks/2009/02/hey-warner-leave-those-kids-alone">atmosphere of fear that makes many YouTubers hesitant</a> to go toe-to-toe with a major record label.
</p>
<p>
There's just no excuse for the Content ID system to be blocking remix videos. There's nothing in the law that requires YouTube to do this. In fact, <a href="http://www.copyright.gov/title17/92chap5.html#512">section 512(m)(1)</a> of the DMCA makes it clear that service providers do not need to install filters or monitor their services at all, much less allow copyright owners to use filters to block remixes.
</p>
<p>
Nor is there any engineering reason why the system should be designed this way. The filter can fix this problem by insisting that the audio and video tracks both come from the same copyrighted work and that the entire (or almost entire) video is drawn from the same copyrighted work. Unless these conditions are met, "block" should not be an option available to copyright owners. If a copyright owner wants to take down a remix video, they should have to follow the rules Congress established in the DMCA.
</p>
<p>
This is exactly what EFF, joined by numerous other public interest groups, asked YouTube to do in 2007 in our <a href="http://www.eff.org/issues/ip-and-free-speech/fair-use-principles-usergen">Fair Use Principles for User Generated Content</a>. It's a shame that YouTube, a company that has become synonymous with remix creativity, can't find the time to fix its own Content ID system to protect remixers from unnecessary censorship.
</p>
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<a href="https://www.eff.org/deeplinks/2008/02/embedded-video-and-your-privacy">Privacy info.</a> This embed will serve content from <em><a rel="nofollow" href="https://www.youtube-nocookie.com/v/9JIp3yStpmg&amp;hl=en_US&amp;fs=1&amp;rel=0">youtube-nocookie.com</a></em><br /> </div>
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</div></div></div>Wed, 03 Mar 2010 06:12:28 +0000fred60943 at https://www.eff.orgCommentaryFair UseDigital VideoNo Downtime for Free SpeechCryptome's Publication of Microsoft's Compliance Manual is a Fair Usehttps://www.eff.org/fr/deeplinks/2010/02/cryptomes-publication-microsofts-compliance-manual
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Yesterday, Microsoft used a Digital Millennium Copyright Act (DMCA) takedown notice to demand that a <a href="http://file.wikileaks.org/files/microsoft-spy.pdf">copy</a> of the "Microsoft® Online Services Global Criminal Compliance Handbook" (the Compliance Manual) be removed from <a href="http://cryptome.org/0001/ms-spy-takedown.htm">Cryptome</a>, a security website. As a result, Network Solutions felt obliged to takedown the entire Cryptome.org domain, a repository for thousands of important and controversial documents. </p>
<p>As is often the case, the ensuing uproar simply <a href="http://www.wired.com/threatlevel/2010/02/microsoft-cryptome/">called more attention</a> to the document in question. Yesterday evening, Microsoft wrote to Network Solutions and withdrew its takedown demand, while insisting that its copyright concern was nevertheless legitimate. </p>
<p>We appreciate that Microsoft acted quickly to correct its error, but are still disappointed that Microsoft nonetheless insists that, in the words of Evan Cox, outside counsel for Microsoft, "Microsoft has a good faith belief that the distribution of the file that was made available at that address infringes Microsoft's copyrights." </p>
<p>To the contrary, as we explain below, Cryptome's publication of the Compliance Manual is a clear fair use under the Copyright Act. </p>
<p>To determine whether a use of a work is fair, courts engage in a case-by-case analysis, starting with the four factors set out in the Act: the purpose and character of the use; the nature of the work; the amount and substantiality of the work; and the harm to the market for the work. </p>
<p>On the first factor, Cryptome used the manual for a noncommercial, transformative purpose—to educate the public on how the government and Microsoft work together and to illustrate how much information is available about internet users. Cryptome did not stand to profit, and was not seeking to exploit the work for money. </p>
<p>Cryptome's use is also transformative because it does not merely supersede original, but instead "<a href="http://scholar.google.com/scholar_case?case=16686162998040575773&amp;q=%22adds+something+new%22&amp;hl=en&amp;as_sdt=2002">adds something new</a>." Cryptome took a work designed to inform law enforcement how to work effectively with Microsoft, and, by putting it in a new context, formed the basis for newsworthy criticism of Microsoft and its compliance practices. </p>
<p>The "nature of the work," factor also favors fair use: factual works like the Compliance Manual receive only thin protection under copyright law, especially where the material has been published. </p>
<p>The extent of permissible fair use copying varies with the purpose and character of the use, and, as the Ninth Circuit has <a href="http://scholar.google.com/scholar_case?case=13767420941977220880&amp;q=336+f3d+811&amp;hl=en&amp;as_sdt=2002">held</a>, "[i]f the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her." While Cryptome copied the whole work, the whole work was necessary for the public to understand Microsoft's policies for allowing the government to obtain personal information about them. </p>
<p>The market harm factor balances the benefit the public will derive if the use is permitted and the financial gain the copyright owner will receive if the use is denied. Here, the public, many of whom have personal information stored by Microsoft, benefits by being informed of Microsoft's compliance practices. And, since Microsoft does not sell or license the manual, posting it on Cryptome didn't cost Microsoft a penny. As <a href="http://scholar.google.com/scholar_case?case=5876335373788447272&amp;q=%22no+demonstrable+effect+upon+the+potential+market%22&amp;hl=en&amp;as_sdt=2002">explained</a> by the Supreme Court, a "use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create." This factor favors fair use as well.</p>
<p>The four factors are balanced in light of the purposes of copyright. And here, Microsoft does not need any copyright incentive to create the manual—it has plenty of business incentives to create a guide that will reduce the costs of its interactions with law enforcement. At the same time, Cryptome's publication serves the welfare of the public by allowing the public to know how their information may be involuntarily disclosed to the government. </p>
<p>Evaluating all the factors together, a court should find that Cryptome's publication of the Compliance Manual is a fair use.</p>
</div></div></div>Sat, 27 Feb 2010 01:09:09 +0000kurt60940 at https://www.eff.orgLegal AnalysisDMCAFair UseNo Downtime for Free SpeechPractical Advice for Music Bloggers Worried About DMCA Takedown Censorshiphttps://www.eff.org/fr/deeplinks/2010/02/mp3-bloggers-protecting
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>
Let's say you are a blogger who writes about music regularly and includes links to music in your posts. How do you avoid having your blog censored off the Internet by "DMCA takedown notices" sent out by music industry lawyers (as <a href="http://www.eff.org/deeplinks/2010/02/musicblogocide">happened last week</a> to several blogs hosted by Blogger)?
</p>
<p>
Of course, you could get authorization from all the relevant copyright owners before you post or link to a song. Unfortunately, that's virtually impossible for many music bloggers. In some cases, it may be impossible to figure out who the copyright owners are (consider the problem of live concert bootlegs, rare B-sides, out-of-print material, defunct labels). In other cases, you might have authorization from someone, but it could end up being the wrong person (i.e., an independent promoter or member of the band who doesn't actually have all the rights to give you). And even if you get authorization from all the right people, you could still find yourself on the receiving end of a DMCA takedown from the entity that controls the copyright in another country (because your blog can be accessed from that country).
</p>
<p>
In other words, it's quite likely that many music bloggers can <i>never</i> be sure that a DMCA takedown notice won't arrive someday.
</p>
<p>
If one does arrive, your blog hosting service probably won't take your side. The law gives online hosting services strong incentives to comply with takedown notices—prompt responses to takedown notices are often the only <a href="http://chillingeffects.org/dmca512/">reliable shield</a> that hosting services have against copyright infringement lawsuits and potentially hundreds of thousands of dollars of damages. No matter how much your hosting service values your business, it is not likely that they will be willing to bet <i>their business</i> to save your blog.
</p>
<p>
While most hosting providers will let you send a "<a href="http://www.citmedialaw.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content">DMCA counter-notice</a>" to contest a bogus takedown notice, sending a counter-notice can have serious consequences if you're not absolutely sure that you had all the necessary legal rights to post the songs or links in question. Sending a DMCA counter-notice is serious business, as it leaves the copyright owner with few options (other than suing) in order to keep the song down. So we recommend that bloggers <a href="http://www.citmedialaw.org/legal-guide/copyright">research copyright law</a> and, if in doubt, consult a qualified attorney (or <a href="https://www.eff.org/about/contact">contact EFF</a>) before sending DMCA counter-notices.
</p>
<p>
The DMCA also gives hosting services strong incentives to "<a href="http://www.chillingeffects.org/weather.cgi?WeatherID=605">terminate repeat infringers</a>." That's why most blog hosting services will delete your account (and thus your entire blog) after receiving multiple DMCA takedown notices. The industry norm seems to be a "3 strikes" policy, although the number of "strikes" can vary. This policy can be particularly unfair when a copyright owner sends multiple DMCA takedown notices all at once, or within a few days of each other — you can find your blog deleted before you even find out who was complaining or can send a DMCA counter-notice. Many hosting providers also mark every DMCA takedown notice on your "permanent record" — simply deleting the file or the link won't expunge the "strike" on your account (generally, only a DMCA counter-notice will do that). So a DMCA takedown notice received for your blog might still count as a "strike" years later (again, this is because service providers want to be able to tell a court that they were good about "<a href="http://www.chillingeffects.org/weather.cgi?WeatherID=605">terminating repeat infringers</a>," lest they lose their shield against copyright infringement lawsuits).
</p>
<p>
Of course, you may be able to talk the copyright owner into withdrawing a DMCA notice ("your marketing department sent me an email saying this link was legit"). And there may be <a href="http://wwwbeepbeepbeep.blogspot.com/2010/02/musicblogocide-2010.html">informal strategies</a> that work most of the time (like deleting links after a short period of time). However, at the end of the day, it's nearly impossible to be sure you'll never receive a DMCA takedown notice.
</p>
<p>
With that in mind, here are a few practical things you can do to minimize the disruption that the DMCA process might inflict on your blog:
</p>
<ul><li><b>Get your own domain name</b>: Most blogging platforms will allow you to use your own domain name for your blog, which will make it easier for your readers to find you if DMCA takedown notices force you to change hosting providers. So, for example, if your blog is at YOURNAME.blogspot.com, and your account gets terminated, you probably will never be able to use that URL again. In contrast, if your blog were at www.YOURNAME.com, you could get a new account from another hosting provider and keep your URL the same. And don't register your domain through the same company that hosts your blog—that should reduce the risk that you'll find both your blog and your domain name deleted by your hosting provider in response to DMCA takedown notices.</li>
<li><b>Back up your blog, be ready to move it</b>: Make sure that whatever blogging platform you use, it allows you to easily back up your entire blog in a format that makes it easy to republish elsewhere. Have a game plan ready for migrating your blog to a new hosting service quickly if that becomes necessary.</li>
<li><b>Make sure your hosting provider can reach you</b>: If a copyright owner wants to send a DMCA takedown notice aimed at your blog, they will probably start by doing a reverse DNS look-up to figure out who is hosting it. So make sure that entity (whether it's a full-service blog hosting service like Blogger or a colo hosting your own server) knows how to reach you. Keep your email address up to date, be sure that messages from your blog hosting service are "white-listed" in any spam filters that you use.</li>
<li><b>Choose a service that has clear DMCA policies</b>: Not all hosting providers accept DMCA counter-notices—make sure yours does, just in case you need to use it. Ask your hosting provider how many "strikes" it takes before your account is terminated. Ask whether "strikes" drop off your account after a period of time. Generally, you're better off with a hosting provider that has thought about these questions and implemented clear policies.</li>
<li><b>Study up a bit</b>: A little studying up before hand can go a long way towards avoiding problem later. A good place to start is <a href="http://www.eff.org/issues/bloggers/legal">EFF's Legal Guide to Bloggers</a>, which contains frequently asked questions about copyright, the DMCA process, and a host of other legal issues that bloggers might face. The Citizens Media Law Project at Harvard also has a great <a href="http://www.citmedialaw.org/legal-guide">legal guide</a> online.</li>
</ul></div></div></div>Wed, 24 Feb 2010 20:17:11 +0000fred60935 at https://www.eff.orgCommentaryDMCAFair UseNo Downtime for Free SpeechBloggers' RightsMusic Journalism is the New Piracyhttps://www.eff.org/fr/deeplinks/2010/02/musicblogocide
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Imagine you're a music journalist who maintains a blog. You've just found a great, new, virtually-unknown artist that you want to tell the world about. How can you do so, in a way that is simple and convenient for your readers, but does not place you or your blog's host at risk of being sued?</p>
<p>Thanks to the increasingly aggressive copyright-enforcement tactics of the music industry, this has become a startlingly complicated question with no good answer.</p>
<p>In the latest signal of this conundrum, at least six music blogs were <a href="http://arstechnica.com/tech-policy/news/2010/02/the-day-the-music-blogs-died-behind-googles-musicblogocide.ars">deleted</a> last week by Blogger due to copyright complaints. It's uncertain who made the accusations that lead to the deletions, but the most likely culprit is the <a href="http://en.wikipedia.org/wiki/International_Federation_of_the_Phonographic_Industry">International Federation of the Phonographic Industry (IFPI)</a>, a copyright-enforcement organization which had previously filed copright takedown notices against some of the targeted blogs.</p>
<p>Although the takedowns were made in the name of stopping piracy, the deleted blogs do not appear to have been hotbeds of illegal file-sharing. Indeed, some had operated for years and acquired a serious and substantial readership. Like many music blogs and magazines, they mostly posted reviews of artists, albums and concerts. </p>
<p>In at least one case, IFPI's accusations of copyright infringement were almost certainly incorrect. Bill Lipold, author of the deleted <a href="http://www.cleveland.com/popmusic/index.ssf/2010/02/i_rock_cleveland_is_shut_down.html">I Rock Cleveland</a>, has outlined in painstaking detail the ways in which he received <a href="http://www.google.com/support/forum/p/blogger/thread?tid=4ba979f2d9e7b6d9&amp;hl=en">explicit permission</a> to post every file on his blog, including ones which were later accused of infringement and forcibly removed. In one case, the band's publicist wrote of the takedown, "Just so you know, this is none of our doing...apparently, DMCA operate on their own set of odd rules, as they even requested that the (band's) official blog remove the song....What a headache..."</p>
<p>In cases like this, attacks on music blogs seem to be the latest example of the widening disconnect between the goals of the music industry's promotional wing and its enforcement wing. Smart musicians and promoters understand that the Net is a powerful promotional tool, and know that sharing an artist's music is the best way to earn new fans. The IFPI, on the other hand, writes clearly in its <a href="http://www.chillingeffects.org/dmca512c/notice.cgi?NoticeID=27000">takedown notices</a> that "Our top priority is to prevent the continued availability of the IFPI Represented Companies' content on the internet." We've already seen this divergence of interests play out in recent fiascos surrounding bands like <a href="http://www.eff.org/deeplinks/2010/01/ok-stop-emi-puts-stop-sharing-princes-viral-video">OK Go</a> and <a href="http://pitchfork.com/news/34490-death-cab-caught-in-warneryoutube-fight/">Death Cab For Cutie</a>. And the television industry has seen similar problems in its attacks on <a href="http://www.techdirt.com/articles/20091229/1920547542.shtml">YouTube</a>.</p>
<p>In other cases, it appears that the bloggers may have posted or linked to copyrighted material without permission. But, as targeted blogger Patrick Duffey <a href="http://poptarts.tumblr.com/post/382580784/theunderrated-stereoactivenyc-soupsoup">explains</a>, it's often next to impossible to know exactly which content is being accused of infringement:</p>
<blockquote><p>
In their DMCA take down letters they never inform you what the infringing mp3’s are, forcing the writer to take down ALL the mp3’s in the offending post whether they have the permission to post them or not... If they had just included what the offending mp3’s were they could have avoided all of these headaches and bad press and we could have kept on going like any other day.
</p></blockquote>
<p>Living Ears, another targeted blog, <a href="http://www.livingears.com/2010/02/where-is-livingears-blogspot-com-blogocide2k10/">echoes</a> those sentiments:</p>
<blockquote><p>
One problem with these notices is that they do not mention infringing files by name. When I post the playlist from Scene Not Heard and link to a couple of tracks, if I receive a DMCA notice, how can you tell which file is to be deleted?
</p></blockquote>
<p>Targeted bloggers need to know these details, not only so that they can remove the file if it's indeed infringing, but so that they can file a DMCA counter-notice in the event that the file is not infringing.</p>
<p>Ordinarily, the party issueing the takedown notice would be required by US copyright law to specify which content is being accused. But, as an international organization headquartered in London, IFPI is arguing that it doesn't even need to play by the USA's rules. "We neither admit nor accept," they <a href="http://www.chillingeffects.org/dmca512c/notice.cgi?NoticeID=27000">write</a>, "...that Google is entitled to be served a notice in compliance with the DMCA." Translation: IFPI is essentially threatening to sue Google under some unspecified foreign law — presumably one which lacks even the modest safe-harbor provisions available in the USA. It's no wonder Google felt the need to take drastic action to avoid liability, even at the expense of the resulting headaches and bad press.</p>
<p>By now, the affected blogs have mostly migrated elsewhere — in most cases to software like <a href="http://wordpress.org/">Wordpress</a>, deployed on smaller and less well-known hosting services. While this will buy them some time, these smaller hosting services are just as vulnerable as Google is to attacks by the IFPI and their ilk. In fact, most smaller hosts are likely to be even less helpful to bloggers than Google has been, since they tend to lack Google's legal resources and PR imperatives. </p>
<p>That being said, there are steps that music bloggers can take to protect themselves. Though EFF hasn't created resources specifically for music bloggers, many of the suggestions made in our <a href="http://www.eff.org/issues/intellectual-property/guide-to-youtube-removals">Guide To YouTube Removals</a> and <a href="http://www.eff.org/wp/gripe-or-parody-sites">Guide To Avoiding Gripes About Your Gripe (or Parody) Site</a> will be relevant. Note especially this list of <a href="http://whdb.com/2007/free-speech-hosting-11-web-hosts-that-wont-dump-you-at-the-first-sign-of-controversy/">web-hosts</a> that have been known to show some spine when faced with legal threats over their customers' content. And, of course, all current users of Blogger should make regular use of Blogger's <a href="http://bloggerindraft.blogspot.com/2008/06/new-feature-import-and-export.html">"export" feature</a> to back-up their work.</p>
<p>If this game of whack-a-mole seems familiar, that's because it is. The same copyright-enforcement machine that was originally designed to fight music piracy, having largely failed at that goal, has now been turned on music journalists, and — in some cases — musicians themselves. It's just the latest example of how legitimate speech and innovation will continue to be endangered until either Congress or the music industry takes serious steps to fix things.</p>
<p><em>Update, Feb 24: EFF has published some <a href="http://www.eff.org/deeplinks/2010/02/mp3-bloggers-protecting">Practical Advice for Music Bloggers Worried About DMCA Takedown Censorship</a>.</em></p>
</div></div></div>Tue, 16 Feb 2010 21:18:59 +0000tim60925 at https://www.eff.orgCommentaryDMCAFair UseInternationalFile SharingNo Downtime for Free SpeechBloggers' RightsHello Streisand Effect: Takedown Hall of Shame Grows by Fourhttps://www.eff.org/fr/deeplinks/2010/01/hello-streisand-effect-takedown-hall-shame-grows-f
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p><em>(The <a href="http://en.wikipedia.org/wiki/Streisand_effect">Streisand Effect</a> describes the phenomenon by which an attempt to suppress information results in faster, broader dissemination of that information. Roughly explained, attempted censorship -- particularly by a famous or well-known entity -- can flag the information as more interesting.)</em></p>
<p>Last October, we <a href="http://www.eff.org/takedowns">launched</a> the Takedown Hall of Shame to highlight the most egregious attempts to silence speech online with bogus intellectual property complaints. Today, we’re inducting four more would-be censors into the pantheon of speech bullies. They are:</p>
<ul><li>Peabody Energy, for <a href="http://www.eff.org/takedowns/energy-company-rages-against-activists-comedy">issuing</a> outstandingly spurious trademark claims against a spoof site criticizing their "clean coal" group;</li>
<li>Yahoo, for an impressive attempt to <a href="http://www.eff.org/takedowns/yahoo-tries-hide-snoop-service-price-list">return</a> a cat to the bag after a leak of its guide to snooping services for law enforcement was posted to a whistleblower site;</li>
<li>Perez Hilton and the Miss Universe Organization for endeavoring to <a href="http://www.eff.org/takedowns/blogger-and-pageant-operators-try-block-advocacy-n">stop</a> a non-profit from airing an ad commenting on a public same-sex marriage controversy initiated by their videos; and</li>
<li>Universal Music Group, for attempting to <a href="http://www.eff.org/takedowns/music-publisher-tries-muzzle-podcast-criticizing-a">muzzle</a> online criticism of the rapper Akon.</li>
</ul><p>The antidote for speech you disagree with is more speech -- not overreaching legal threats. Hopefully, we'll see companies exercise more discretion and transparency when dealing with speech they dislike, instead of reaching for the nearest blunt legal instruments.</p>
</div></div></div>Tue, 19 Jan 2010 18:30:04 +0000richard60896 at https://www.eff.orgNews UpdateFree SpeechNo Downtime for Free SpeechMore Silly Trademark Claims: Peabody Energy Threatens “Clean Coal” Spoof Sitehttps://www.eff.org/fr/deeplinks/2010/01/and-another-one-takedown-hall-shame-peabody-energy
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The closing months of 2009 saw the beginning of an unfortunate legal dispute in which a trademark owner, the U.S. Chamber of Commerce, <a href="http://www.eff.org/cases/chamber-commerce-v-servin">ran to court</a> to punish political activists for using its marks in a political parody. Sadly, less than a week into 2010, another trademark owner, Peabody Energy, is also using legal threats to attempt to silence criticism.</p>
<p>Peabody is one of a group of coal companies that has formed a Consortium for Clean Coal Utilization (CCCU) with Washington University, ostensibly to research “clean coal” methods -- much to the consternation of students and environmental activists who view “clean coal” as an oxymoron. One of those activists, Brian DeSmet, created a <a href="http://cleancoalwustl.org">website</a> spoofing the CCCU’s <a href="http://cleancoal.wustl.edu/">official site</a>. To give a flavor of the spoof: the official site declared that CCCU's mission is to “be a resource to industry for the advancement of technologies that foster clean utilization of coal by creating an international partnership between universities, industries, foundations, and government organizations;” the spoof site declares that CCCU's goal is to “be a public relations tool for industry for the advancement of misinformation intended to manipulate the public to believe that clean utilization of coal is possible by hijacking the credibility of universities, industries, foundations, and government organizations.” The spoof site identified consortium members by name and, reasonably enough, included the members’ corporate logos. </p>
<p>Peabody was not amused, and sent an after-hours <a href="http://cleancoalwustl.org/images/20100106_canddletter.pdf">cease and desist letter</a> demanding that Mr. DeSmet shut the site down by the next morning, insisting that use of logos and even references to Peabody amounted to not only trademark infringement and dilution but also defamation, product disparagement, and even unfair competition. Hoping to put a quick end to the threat, Mr. DeSmet voluntarily removed the logos and added a disclaimer, but Peabody continues to insist that it has veto power over the look and feel of the critical site.</p>
<p>Nonsense. As EFF has <a href="http://www.eff.org/files/Peabodyletter.pdf">explained to Peabody at length</a>, the spoof site is just that — a clearly parodic website that uses some of the target's trademarks as a necessary part of the parody. As such, it is protected by trademark fair use doctrine and the First Amendment. Moreover, the site is entirely noncommercial; it neither offers for sale nor even links to advertising for any goods or services. Several courts have held that noncommercial uses are exempt from federal trademark infringement claims (and they are statutorily exempt from dilution claims). </p>
<p>This shameless takedown is one for the books, and you can look forward to seeing it in EFF's Takedown Hall of Shame soon. As trademark expert Professor J. Thomas McCarthy observes: </p>
<blockquote><p>some mark owners are hyper-sensitive to . . . humorous and sometimes caustic criticism. Perhaps it is because many top executives in large companies are not used to being mocked and made fun of. Therefore, they are ready, willing and able to unleash the dogs of litigation against anyone who makes fun of the symbol of their company. But the more successful and famous a company and its products becomes, the more likely it will become a societal symbol of something. . . . A certain toughening of the hide may be a more effective response than asking the courts to silence the clowning critic.</p></blockquote>
<p>6 McCarthy on Trademarks and Unfair Competition § 31:153.</p>
<p>Hear, hear. It’s time for hyper-sensitive trademark owners to finally learn that the best response to critical speech is more speech, not legal threats. Using bogus trademark claims to threaten critics doesn’t persuade anyone. Instead, it simply makes the public wonder why you can’t take a joke. </p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/fr/cases/chamber-commerce-v-servin">Chamber of Commerce v. Servin</a></div></div></div>Wed, 13 Jan 2010 00:10:44 +0000corynne60890 at https://www.eff.orgCommentaryNo Downtime for Free Speech